IN RE SHATTUCK.
would be compelled to if I acquiesced in the position contended for by the attorney for the United States. By the latter clause of the proviso to section 6, the secretary of war is authorized to grant a permit for depositing any of the substances mentioned in section 6 in a place designated by him.; not where it will alter the course of the channel of the navigable waters of the United States, but where "navigationwill not be obstructed thereby." I think thatthe excavating and filling, altering and modifying of the course, location, and capacity of the channel, as described in section 7, must have ref· erence to such permanent construction as tends to obstruct navigation, the building of which must have the approval and authorization of the secretary of war. This count charges the 'defendants with excavating the bank, bottom, shore, side, bed, and channel of the Little Kanawha river, and with filling the side, bed, shore, bank, and channel of the same, and thereby unlawfully alWring and modify· ing the course, location, condition, and capacity of the channel of the river. This constitutes one of the offenses created 'by the aey' enth section, and, if there was sufficient clearness of allegation as to the place where the excavation was made, Qi·the filling was done, and the channel was changed, the count would be good, treating that which relates to the substances mentioned in the sixth section as unnecessary detail and as surplusage. But for reasons I have already given in connectiOlll with the other counts of this indict· ment, I must hold this one bad. If the defendants are to be required to answer to the charge of excavating the banks of the river and tllling the bed and channel of the same, the place or places where it is alleged they so excavated and filled should be given with more definiteness than that it was done "at the district of West Virginia." The indictment. and each count thereof, will be quashed.
In re SHATTUCK et aL (Circult Court, S. D. New York. January 23, 1893.)
CusTOMS DUTIES-CLASSIFICATION-SILK AND COTTON ELASTIC WEBBING.
Elastic webbing composed of India rubber, cotton, and silk, India rubber being the component material ,of chief value, but cotton being the chief component matelial as to qUll.lltlty, held, that the merchandise was properly dutiable, as the manufacture of which India rubber is the com· ponent material of chief value, at 30 per centum ad valorem, under paragraph 460 of Schedule N of the tariff act of October 1, 1890, and not 'as "cotton webbing," at 40 per cent. ad valorem, under paragraph 3.')4 of Schedule I of said tariff act, as decided by the board of general appraisers.
At Law. Appeal by the importers from a decision of the board of general appraisers affirming the decision of the collector of the port of New York in the classification for customs duties of eertain elastic webbing imported into that port November 18, 1890, and returned by the appraiser as "sillr and cotton elastic webbing, silk chief value, 50%," and duty accordingly assessed thereon by the collector at that rate, under the provisions of paraf,rraph 412 of Schedule L of the tarift act of October 1, 1890. The importers duly filed their protest against this classification, claiming that
of chief 'Value was India rubber, and that was therefore at 30 per cent. ad valorem, under . Schedule. N, par. 460, of. said tariff act.. After the proceedings .came the board general appraisers, the different artides analy.zed:In the oftlce. of the United States appraiser, and those sample· "A" were found to consist of Inm,a rubber, silk, and cotton, silk being the component material of chief value. In those represented by samples "B" and "c" the component materials were foun<i to be the same, but of different .proportions; India .rubber in both cases being the material of chief value, but cotton: b$g the component material in chief quantity. r.rh:e board of general appraisers thereupon found as conclusions of fact:
"(1) ..That the werchandlse is elastie webbing, composed of cotton, sUk, and Ind1l:L rubber; . (2). that aU of the gqods are manufactured cbie1ly of cotton: (3): 'rb,at in. Exhibit A sllJt .is the coIilpOnent material of chief value; (4) that E.xhlblts B arid 0 have India rubber as the component material of chief value." .
in their decision, say:
,. is an especial kind of goo(ls, well known in trade and commerce, for whlGlJ, congress mad\'! specific provision in paragraphs 354, 898, and 412, Act Oct. 1; 1890. The two which we have to deal are: 354: 'Cotton,··. · · webbing, · · · e1tl$tic or nonelastic, 40 per cent. ad valorem;' 'and 412:' 'Webbing, · · · elastic or nonelastic, · · · made of sDk,or of which sUk: is the component material ot chief value, fifty per cent. ad valorem;' ..
-And decided that in webbing of which silk was the component materiaJ, qf chief value,exclusiveof India rubber, the merchandise was provided for as.sUk elastic. webbing, and that the articles, which cotton elastic webbings, made chiefly' of cotton, were properly dutiable under paragraph 354 of said tariff act, in which they formed a portion or group or class of goods sui generis; and that hence the protest of the importers as to those articles was not well taken, .and th,at the a.cti9n of the collector should therefore stand. . On the trial in the circuit court. it was argued in behalf of the .coUector iU,td the government that the w.erchandise was silk and cotton elastic, 'webbing, . as .returned by the appraiser and classified :by. the collector, and was therefore designated eo nomine either or paragraph 354, and that there was no evidence before the board, none walil taken in the circuit court, to'idisprove ,correctness of this finding of fact by the collector, which, under a well-recognized rule of law, must be presumed correct, as made by sworn officers of the government, until the, contrary should. proved by competent evidence; hence the cases.in the supreme court, (Hartranft v. Meyer, 135 U. S. 237, 10 Sup. Ct.R:eP. 751, alid others,) which make the. classification depend :t:lpon the component material of chief value as between two . $oUld not apply. , . . Curie, Smith & Mackie, for importers. Edward Mitchell, U. 8. Atty., and Ja.mes. T. Van B.ensselaer, Asst. u. S. Atty., for conectQrand the United States.
JUDD ,. i'LAGLER.
LACOMBE, Circuit Jtldge.As to the' 8llk goods, of course the board's decision is affirmed. There is no dispute in regard to that. If it appeared here that it was not practicable to make cotton webbing elastic without the presence of India rubber, I should be inclined to affirm the board's decision; but as there is no evidence to that effect, and as in fact there could not very well be such evidence,-as we all know, it is a matter of weave, as well as material, that cotton webbing can be made elastic without the presence of any Jndia rubber in it whatever,-I am of the opinion that the webbing clause (paragraph 354) cannot cover these articles of which India rubber is the component material of chief value. Therefore the decision of the board is reversed, and it is directed that the articles be classified for duty under paragraph 460, as to Exhibits B and C. '
UNITED STATES v. FIELD et Ill. (Clreult Court of Appeals, Seventh Olreult. February U, 1893.)
CuSTOMS DUTIES-PROPERTY SUBJECT TO DUTY-SILK VEILS.
Silk goods, which, although made in the manner of laces, and having the substantial characteristics of 'laces, are not commercially known as "laces," but as "silk nets," " veilings," and "drapery nets," are dutiable under Schedule L, (paragraph 414 of the customs act of 1890.) as a. manufacture of silk not otherwise proVided for, and not as silk laces. 50 Fed. Rep. 908, afllrmed.
from the Circuit Court of the United States for the Northern Dis"trict of DIinois. Proceeding by Marshall Field & Co. to review a decision of the board of general appraisers. The circuit court reversed the decillion, and ordered the collector to reliquidate the duties. 50 Fed. Rep. 908. The government appeals. Affirmed. Thos. E. Milchrist, U. S. Dist. Atty. N. W. Bliss, for appellees. Before GRESHAM,and WOODS, Cll:cuit Judges, and BUNN, District Judge. PER CURIAM. The decree appealed from is affirmed upon the grounds stated in the opinion of the court below, reported in 60 Fed. Rep. 90S.
KIDD et al. v. FLAGLER.
(Olreult Court, N. D. New York. March 2, 1893.) No. 2,583.' L
CuSTOMS DUTIES-REIMPORTED LIQUOR WITHDRAWN FROM BOND.
Where a person has removed liquor from a bonded warehouse to Canada without paying the internal revenue tax, and landed it, and permitted it to rema.tni there for a month. he is entitled to bring it back to the United