does not ,claIm' title. to the, property adverselytq, Company, but he insist!' that, prior to the comof. the proceeding by ;Which the Fxancis,-V C<>mpany was adjudged bankrupt, the property had been by him, as sherand county of San Frapcisco, levied upon under writs iff of the of attacb.ment and execution issued out of the superior court of the state ,Of Oalifornia, in and for the city and county of San, Francisco, in certain actions pending in that court, in whiclI the Francis-Valentine Company was a defendant; and it, is further· claimed by him has no jurisdiction, in a summaryprogeeding like this; t01nquire into hi.s right to withhold the possession of said property fr9m' the trustee. In my opinion, th.is' court has jurisdiction, as there is question here of conflicting titles to property; it being eonced,ed that the property belon.ged to the Francis-Valentine C<lmpany, that the legal.title. thereto, of course, to all lawful liens,plj.Bsed. by operatipn of Illw,to the trustee in bankruptcy. The actioI;\s, in the state epurt were. all commenced, and the writs of attachment ,and execution issued and levied, within four months prior to the filing'in this court of the petitioj1 in bankrqptcy aga;inst the Francis;Yiii,lent,ineCompany, and the liens .obtained thereby becll,:p1e, under l'lubdivisfon f of section 67 of the bankruptcy act of 1898, Dull and void. wpen that company was.adjudged bankrupt. Such being the case, the respondent, whose only claim is based upon the proceedings in the state court, is not entitled to the' possession of the property levied upon by him, as against the trustee of the bankrupt. Whether the respondent is entitled to have the costs incurred by him in the attachment proceedings paid out of the proceeds arising from any sale of the property made by the trustee ,is 'a question not necessary to be passed upon at this time. If it should be conceded that he has such right, it still cannot be admitted that he has the right to withhold the possess1on of the property from the trustee for the purpoSe of euforcing such demand. Application granted.
In ,re COLES. (Circuit N. D. California. No. 12,565.
CUSTOMS VUTIES-CLASSIFICATION-ANTFrRACITE' COAL.
April 24, 1899.)
Under the tariff act of 1897, anthracite coal containing less than 92 per cent. of pure carbon is dutiable, being clearly embraced within the language of paragraph 415, which imposes l' duty on "coal. bituminous, and all coals containing less than ninety-two per centum :of fixed carbon," and thus brought exception contll.ined in paragraph 523, placing on the free list "coal, anthracite, not specially provided for 'in this act."
This is Q1i application by CharlesP. OMs for the review of a decision of the board of gel'1eral appraisers relative to the classification for duty of a cargo 'Of anthracite coal. . Sidney V. Smith, fdjo:petitioner. Samuel Knight, Asst. U. S. Atty.
IN RE, COLES.
MORROW, Circuit Judge. The petitioner, Charles P. Coles, on the 24th day of July, 1897, imported from Swansea, Wales, into the port of San Francisco, Cal., in the United States, 3,494i tons of anthracite coal, in the British ship Muskoka. On August 3, 1897, the collector of the port of San Francisco classified the importation as "coal containing less than 92 per cent. of fixed carbon," under the act of July 24, 1897, and dutiable, under paragraph 415 of that act, at the rate of 67 cents per ton. The petitioner paid the amount levied, but within the proper time entered his protest against this classification and liquidation by the collector, on the ground that the importation was anthracite coal, so known to the trade commercially, and entitled to free entry, under paragraph 523 of the act of July 24, 1897, as "coal, anthracite, not specially provided for in this act." The collector referred the matter to the board of United States general appraisers at New York, and the classification and decision of the collector was there upheld. To reverse this decision, petitioner appeals to this court for a review of the questions of law and fact therein involved. The act entitled "An act to provide revenue for the government and to encourage the industries of the United States," approved July 24, 1897 (30 Stat. 151), provides:
"That on and after the passage of this act, unless otherwise specially provided for in this act, there shall be levied, collected, and paid upon all articles imported from foreign countries, and mentioned in the schedules herein contained, the rates of duty which are, by the schedules and paragraphs, respectively prescribed, J;lamely:
than ninety-two per centum of fixed carbon, and shale, sixty-seven cents per ton of twentyeight bushels, eighty pounds to the bushel; coal slack or culm, such as will pass-through a half-inch screen, fifteen cents per ton of twenty-eight bushels, eighty pounds to the bushel: provided, that on all coal imported into the United States, which is afterwards used for fuel on board vessels propelled by steam and engaged in trade with foreign countries, or in trade between the Atlantic and Pacific ports of the United States, and which are registered ,under the laws of the United States, a drawback shall be allowed equal to the duty imposed. by law upon such coal, and shall be paid under such regulations as the secretary of the treasury shall prescribe; coke, twenty, per centum ad valorem. '
"Free List. "Sec. 2. That on and after the passage of this act, unless otherwise specially provided for in this act, the following articles when imported shall be exempt from duty:
"Par. 523. Coal, anthracite, not specially provided for in this act; and coal stores of American vessels, but none shall be unloaded."
It is admitted by the appellant that the cargo of coal involved in this case contained less than 92 per centum of fixed carbon, but he contends that this fact does not bring it within the provisions of paragraph 415 of the tariff act, because the coal is commercially kn()wn as "anthracite coal," and is specifically designated and provided for in the free list, under paragraph 523; that the term "containing less
than ninety-two per centum offtxed carbon," in the duty list, is a general, descriptive phrase, referring onlJw to a certain quality possessed by coal, which must yield to the special commercial designation implied in the word "anthracite"; that the words "not specially provided for," in paragraph 523, are words introduced into the stat1lte out of abundant caution, and do not limit the words "coal, anthracite," in the same section; that, as a matter of fact, anthracite is by its nature so differentiated from other coals as to require special mention, and that the expression "all coal containing less than ninetytwo per centum of fixed carbon" is meaningle8s as regards anthracite coal, all. cargoes of which contain less than 92 per centum of fixed carbon; that anthracite has been free of duty for the last 30 years; and that no reason has been shown why congress should have intended to legislate differently from heretofore as regards this substance. By the act of July 4,1789 (1 Stat. 24, 25), the duty on coal imported into the United States was fixed at 2 cents per bushel. The act of August 10, 1790 (1 Stat. 180), increased the duty to 3 cents per bushel. The act of }fay 2, 1792(1 Stat. 259), 'further increased it to 4t cents per bushel, and the act of' June 7, 1794 (1 Stat. 390, 391), to 5 cents per bushel. The act of July 1, 1812 (2 Stat. 768, 769), added 100 per centum to the permanent duties then existing, making the duty on coal 10 cents per bushel. The act of April 27, 1816 (3 Stat. 310, 311), reduced the duty to "five cents per heaped bushel." By the act of 22, 1824 (4 Stat. 25-28), the duty was increased to 6 cents per "heaped bushel," and this continued to be the rate of duty on coal for the period of 18 years,or down to the act of August 30, 1842 (5 Stat. 548-5(3), when the rate of duty and the unit of measurement were changed to $1.75 per ton. By the act of July 30, 1846 (9 Stat. 42-45), the duty was changed to 30 per centum ad valorem; and by the act of March 3, 1857 (11 Stat. 192), the duty was reduced to 24 per centum ad valorem. By the act of March 2, 1861(12 Stat. 178182), a duty of $1 per ton of 28 bushels, 80 pounds to the bushel, was levied on bituminous coal; on all other coal, a duty of 50 cents per ton; and pn coke and culm of coal, 25 pel' centum ad valorem. By the act of July 14, 1862 (12 Stat. 543-546), the duty on bituminous coal was increased 10 cents per ton of 28 bushels, 80 pounds to the bushel; on all other coal, 10 cents per ton; and on coke and culm of' coal, 5 per centum ad valorem. By the act of June 30, 1864 (13 Stat. 202-206), the duty on bituminous coal and shale was fixed at $1.25 per ton of 28 bushels, 80 pounds to the bushel; on all other coal, 40 cents per ton; and on coke and culm of coal, 25 per centum ad valorem. The act ,of July 14, 1870 (16 Stat. 256-266), was an act to reduce internal. taxes, and for other purposes. In this act "coal, anthracite," was placed on the free list, and is the first mention of anthracite in the tariff laws. In all previous acts, and for a period of 80 years, it ·had been subject to duty as other coal. The· act of June 6, 1872(17 Stat, 230), was an act to reduce duties on imports,. and to reduce internal taxe8, and for other purposes. By this act a duty was levied on all shick coal or culm, such as would pass through a half-inch screen, of 40 cents per ton of 28 bushels, 80 pounds to the bushel; on all bituminous coal or shale, 75 cents per ton of 28 bush-
IN BE COLES.
els, 80 pounds to the bushel. Anthracite coal was not mentioned in this act. But it appears in the free list in the Revised Statutes (June 22, 1874), under section 2505, as "coal, anthracite," while the duty on all other coal, as provided in the act of 1872, appears under the schedule of "Sundries," in section 2504. The act of March 3, 1883 (22 Stat. 488), reduced the duty on slack coal or culm, such as will pass through a half-inch screen, to 30 cents per ton, but made no other change in the duty or description of other coal. Anthracite coal was continued on the free liBt. The act of October 1, 1890 (2G Stat. 567), commonly known as the "McKinley Act," provided, in paragraph 432, p. 600, as follows:
"Coal, bituminous, and shale, seventy-five cents per ton of twenty-eight bushels, eighty pounds to the bushel: coal slack or culm. such as will pass through a half-inch screen, thirty cents per ton of twenty-eight bushels, eighty pounds to the bushel."
"Coal, anthracite," is continned on the free list, in paragraph 536, p. 605. The act of August 27, 1894 (28 Stat. (09), commonly known as the 'Wilson Act," was an "Act to reduce taxation, to provide revenue for the government, and for other purposes." It provided, in paragraph 318i. p. 533:
"Coal. bituminous and shale. forty cents per ton: coal slnck or culm such as will pass through a half-inch screen. fifteen cents per ton."
And in the free list, in paragra ph 441, p. 539:
"Coal, anthracite, and coal stores of American vessels, but none shall be unloaded."
We come now to the act of July 24, 1897 (30 Stat. 151), commonly known as the "Dingley Act." It iB entitled "An act to provide rev· enue for the government and to encourage the industries of the United States." In paragraph 415, p. 190, it is provided:
"Coal, bituminous, and all coals containing less than ninety-two per centum of fixed carbon, and shale, sixty-seven cents per ton of twenty-eight bushels, eighty pounds to the bushel"
The language of this section, as will be seen b: omparison, is a departure from that of all previous sections of the la IV upon this Bubject, and distinctly provides that all coals containing less than 92 per centum of fixed carbon, including bituminous coal, which had been mentioned by name in all the acts since the act of :March 2, 1861, should be subject to a duty of 67 cents per ton. There is no question but that the article involved in this controversy is coal, and, that being so, there remains but one other inquiry to determine whether it comes under this section, and that is, does it contain less than 92 per centum of fixed carbon? It is admitted that it does. Then it is distinctlv described, and made subject to the duty of 67 cents per ton. · But the appellant contends that he has found a more specific provi· sian for this coal in the free list, under paragraph 523, where "coal, anthracite," is enumerated. But, how enumerated? Not as it was enumerated in all the acts from 1870 down to this act of 1897, but with this distinct qualification: "Not specially provided for in this act." This section is therefore limited. It does not provide for the free entry of all anthracite coal, as did the previous acts. It leaves some coal of that name to be tound elsewhere, and, by returning to
of all coal, fixe4,cai·bon. His tb edlit}' ofJhe eQlu't :t9lead a .statiIte according, to the most 1m: Po.rtof the, ll,Ulguage without resorting t9, subtle tions,fQf th,e, purpose of either limiting or extending its opera"tion. W aUel,' vt. lIarris, 2QWend. 555" 561. It is also a cardihal rule in the constrllction of afltatute that a"JI of its parts are to be,brought into harmqny, if possible, and so construed that no clause,sentence, or word shall be void, superfluo,us, or insignificant. Suth.St. COlist. § 240; In reTrustees of the New York & B. Bridge, 72 N.Y. 527. Uudel' this rule of construction, the two sections of the act may be combined, .and form one clear, concise, and logical enactment, providing that coal ofiny description whatsoever, containing less than 92 per centum of fixed carbon, is liable to a duty of 67 cents per ton, while anthracite coal, containing 92 per centum and more of fixed carbon, is to be admitted free. The two sections express the will of congress with respect to all coal. With .t:egard to appellant's contention that such a construction excludes,iulthracite coal from the free list altogether, for no cargo of anthracite coal contains more than 92 per centuDl ,of fixed carbon, it is sufficient· to say that the statute does not impose the duty by the cargo, but on the unitofa:ton; and it appears, from.the evidence, that as a matter of fSiCf sanlp}es of anthracite coal, taken and tested, show a variation in the amount of fixed carbon ranging from 86 to 94 per centum. There is, then, an imported article of coal upon which the free Jistprovision of the statute may operate;an(l"if this is so, there DO ground for saying the statute is meaJiiJ?gless. It is only where, a word or sentence is, uniIJ,telligible, or produces absurd and conflicting results, that it may be disregarded in giving effect to other provisions. The decision of the board of appraisers is affirmed.
SIMONDS ROLLING-MACH. CO. v. HATHORN MFG. CO. et al. H,A.T:fIORN MFG. CO. et al. v. SIMONDS ROLLING-MACH. 00. Court of Appeals, First Ch;cll-it. 1899.) Nos. 260 and 261.
SAME-DIES FOR FORGING METAL ARTICLES.