IN BE S.CHMID.
Rep. 324. The words "not sawed or cut" cannot be read out of the statute; they are there and must receive some construction. What other meaning they can have than the one contended tor by the collector I am at a loss to conjecture. Were it necessary to resort to extrinsic circumstances to arrive at the legislative intent, a persuasive piece of evidence is found in the record. It appears that the importer, Mr. Gerdau, called the attention of the ways and means .committee of the fifty-first congress to the fact that if the language of paragraph 618 became law, a tusk of ivory which was once sawed transversely would· be subject to duty. There was no misunderstanding at that as to the true meaning of the paragraph; all understood it alike. With the attention of congress thus sharply drawn to the inevitable result of the proposed enactment it must be presumed that they legislated in the light of this knowledge. If they had intended to permit the free entry of sawed. ivory they would have modified the paragraph; not having done so, the presumption is clear that they did not· so intend. The case of Hartranft v. Wiegmann, supra, is not in point. The court was there dealing with a provision of the law· which placed on the free list "shells - - -not manufactured." If the statute had read "shells, not cleaned, ground, or otherwise manufactured" it is manifest that the decision would have· been different. The reasoning of the board in the able opinions returned with the record is, to my mind, unanswerable, and their decision should be affirmed.
mann, 121 U. S. 609,7 Sup. Ct. Rep. 1.240; U. S. v. Semmer, 41 Fed.
In re SCHMID.
(Olroult CoUrt, S. D. New York. February 10, l898.)
OUBTOM8 DUTIES-GOODS IN BOND-ADDITIONAL DUTY.
Rev. St. § 2970, providing for an extra duty of 10 per cent. on goods rema.lnlng in a bonded warehouse longer than a year, Is repealed by A.ct OCt. I, 1890, § 50, and under the latter act such additional duty cannot be levied upon goods which had been in 'bond more than a year before Ootober 6, 1890, (when the act of 1890 went into effect,) and were withdrawn in January, 1891. U. S. v. McGrath, 50 Fed. Rep. 404, approved.
Appeal by importer from the decision of the board of general appraisers affirming the action of the collector of the port of New York. Reversed. Stephen G. Clarke, for importer. Henry C. Platt, Asst. U. S. Atty., for collector. COXE, District Judge. The merchandise in question-whiskey, wine, tobacco, etc.-was imported and entered for warehouse January 10 and March 9, 1889, and remained there until January, 1891, when it was withdrawn and the duties paid. The collector assessed an additional duty of 10 per cent. under the provisions of section 2970 of the Revised Statutes. The importer protested against the exaction of this duty upon the ground that the law permitting it had v.54F.no.1-1O
''That nny merchandise deposited in bond in any pUbllc· or private bonded. warehouse may be withdrawn for conBUIIlp11ou within three years from the rtnteO'toriglnal importation, on payment of the duties and charges to wblch 1. may l>'l eubjoot by law at the time of such withdrawal"
beentep$le\t . Section 29'ro tprtovides in subBtan¢0\that merchandise deposited In a bonded warehouse may be withdrawn for consumption withili obeyearfroDl the :date of importation, on payment of the duties alidi Chatj1;es due at the time of such withdrawal, but if it remains filstch 'warehouse after the expiration of one year it may be withdra'Whoh payment of the assessed duties and an additional duty of If)' percent. of the amount of such duties and charges. Sectiori20 of the customs administrative act of June 10, 1890, as aniendedby section 54 of the act of October 1, 1890,. ,provides:
act al,'e. hereby repculed,. but. the repeal of existing laws or modifications thel'eofembraced in tbls Ii.Ot shall not affect any act done, or any right accruing or accrued, or any suitor proceeding had or commenced .in any civil caUlle before the sald repeal 01' modifi.catioD8; but all rights .and Uabilltles under sa,1d laws shall continue and may .be enforced in the same manner as It sald. repeiU or modliications 1lad not been. made."
. 29 of the said act of June 10', 1890, after repealing eo Ih>mb;1e various sections of the Revised Statutes, and after reciting varionssections of subsequent statutes, continues as follows: aJl other aots and Part:a of aots incoDBlstent with of tbls
Section 30 of the said act provides that the aet, with exception of section 12, shalltake effect August 1, 1890. OJ! the lilt of August, 1890, the merchandise In questIon had re,mained in bonded warehouse at least four months over one year. When the year expired, section 2970 of the Revised Statutes was in force and continued in force for several months thereafter. The saving c.lause of the repealing act expressly provides that it shall not affect "any,right accl'Uing or accrued." It the withdrawal had taken place subsequent to August 1st, and prior to the passage of the new tariff act, there would have been an interesting question whether or not the right of the government to the additional duty had not accrued, or, at least, was not accruing. It is argued with plausibility that the interest of the government in the additional duty attached after the expiration of the year, and although that interest was in a. sense inchoate and contingent it was nevertheless an llcclmIng right preserved· by tlle saving clause of the repealing act referred to. But thetnerchandisewasnot withdrawn until January, 1891, after the passage of the act of October 1, 1890. Section 50 of that act provides that on and after October 6, 1890,"All goods, wares, and merchandise previously bnported, for Which no entry has made, and all goods, wares, and merchandise previously entered, without payment of duty aJl,d under bopd for warehousing, traJuiportatlon or any other purpose, for wblch no permlt.of dellvery to the bnporter or his agent haA been issued, shall be· subjected to no .other dUty, upon the entry or the withdrawal thereof, than it the same were imported, respectively, after that day: provided, that. any ip:I.ported merohandise deposited in bond in any public or private been 80 deposited prior to the, first day of October, eighteen hundred and ninety, may be withdrawn for consumption at anytime 1>l,1or to February first, eighteen hundred and nfuety" one. upen the payment ot dUties at the rates in force prior to the passage ot
UNITll:D STATES V. DAVIS.
this act: provided, when duties are based upon .the weight of merchandise deposited in any public 01'. private bonded warehouse, said duties Bhall be levied and collected upon the weight of IUch merchandise at the time of its withdrawal."
the Revised Statutes, and abolish the additional duty therein proof section 50 is too plain to admit of doubt vided for. The that after October 6, 1890, no duty can be levied on merchandise in warehouse that could not be levied were the merchandise imported after October 6, 1890. In other words, merchandise in warellouse equality prior to October 6th is placed, as to duties, on an with similar merchandise imported after that date. U. S. v. McGrath, 50 Fed. Rep. 404. ' . The decision of the board is reversed.
this act," and contains a proviso similar to that of the repealing clause quoted from the act of June 10, 1S90. I have no doubt at all, after considering all of the acts referred to, that it was the intention of congress to repeal section 2970 of
Section 55 repeals "all laws and parts of laws inconsistent with
UNITED STATES v. DAVIS. (CircuIt Oourt of Appeals, Eighth OIrcult. January 27, 1893.)
Pleces of marble less than an inch in length and breadth, and pa.sted on paper in the form of blocks, or loose in bags, and intended to be imbedded in cement, SO as to form a mosaic pavement, are dutiable at $1.10 per oubic foot, a.s marble paviI!g tiles, under pamgraph 124 of the tarifl act of October 1, 1890, (26 at. lLt Large, p. 567,) and not at 50 per cent. ad valorem, as manufactures of marble not specially provided for, under paragraph 125. Davis v. Seeberger, 44 Fed. Rep. 260, approved.
SAME-CONSTRUOTION OF STATUTE.
In cases of doubt as to the classification of an imported article, the construction most favorable to ilie importer should be adopted. Hartranft v. Wiegmann, 7 Sup. Ct. Rep. 1240, 121 U. S. 609, followed.
Where a duty is imposed upon an article by a specific name, this will determine its classification, although the article may be included in other words of geneml description in another part of the same act. Twine Co. v. Worthington, 12 Sup. Ct. Rep. 55, 141 U. S. 468, followed.
SAME-REVIEW OF ApPRAISERS' DECISION-FORM OF JUDGMENT AGAINST THE UNITED STATES.
In a proceeding under Act Juntl 10, 1890, § 15, to review ilie decision of the board of general appraisers, the award of the circuit court is not limited to giving iL mere certificate showing the amount due the clalmant, but its duty is to hear, decide, and adjudge, under Act March 3, 1887, (24 St. at Large, p. 505,) and a judgment "that the petitioner recover" is not erroneolUL
Ii. SAME-COSTS AGAINST THE UNITED STATES. In a. proceeding to review a decision of ilie board of general appraisers,
under Act June 10, 1890, § 15, costs are recoverable against the United States, si.nce the purpose of the act was merely to "simplify the laws" .and change the procedure, not to take away the previously existing light of the importer to costs, (in his action the collector;) and.. where the