826
FEDERAL REPORTEn.
signed, (Florio v. Peaslee, 2 Curt. 452,) but it is immaterial whether that signature is in writing, m,ade with ink or l'encil, stamped, or printed. Nor does it matter whether it was placed on the protest by the plaintiff, by his formally authorized agent, by one casually called upon for the occasion, or by a person employed by the firm, the proper discharge of whol?e functions would naturally call for the making of these protests. So, too, a signature affixed without authority would become the firm's signature. by adoption, when the protest was, by the firm or its agent, affixed to the entry, or served on the collector. So, too, when a genuine protest is found in its proper place in the custom-house it will be presumed that it was attached, presented, or served at the time of its date by the importer or his agent; and upon the strength of such presmnption many verdicts have been rendered againstthe government since this term opened. Here; 'however, neither handle will fit into the case. It cannot be presumed that the protest was .attached to the entry by plaintiffs or their agent, because its genuineness is not shown, nor can its genuineness be presumed on the theory that it was attached to the entry by plaintiffs or their agent, because that latter fact does not appear in evidynce. Thecaseierone Of great hardship, produced in part by the col,.tec,¥>r's subordinates, in part by plaintiffs' failuretQ secure among theIr own papers .secondary evidence of these documents; but, ih the ab$ence of what the law recognizes as competent evidence of the facts; which plaintiffs must show to warrant recovery. I dQ not see how these verdicts can stand. . . . In the smaller action, ,the missing evidence only affects the Challenger trial will not be ordered if plaintiff stipulates to reduce entry, and the verdict Qy the amount of that. entry. Upon the new trial the missing protest w&s found, and verdict was directed tor plaintiff.
AMERICAN NET & TWINE Co. i j'
'II.
WORTHINGTON, Coller tor.
(O-vrcuit Oourt. D. Ma88apl/,fuett8. January 81. 1888.' . .. .The tariff act of third March, 1888, 22 St. 488. Sched. J, § 6. p. 507. subd. 2, 8S follows: "Seines and seine and gilling twine, twenty·five per centum acl fJalo1'em," does not refer to linen thread, numbered fromlO to 60, and used by boot 8ndshoe makers, upho.lsterers, bookbinders, saddlers, and other trades. 8S well as by gill-net makers: and such thread, though called"gilling twine,· is subject to the 40 per cent. rate of the preceding subdivision. DUTIES-CLASSIFICATION-TwINE.
'Action to Recover Back .Oustoms Duties. Plaintiff, the AmericanNet & Twine Company, brought action against Roland Worthington, collector of the port of Boston, for certain duties paid under protest'.' O. P. &C#'le, for plaintiff.
AMERICAN NET & TWINE CO. fl. WORTHINGTON.
827
NELSON, J. This is an action at law by the American Net & Twine Company against the collector of the port of Boston', to recover back duties paid under protest. By stipulation of the parties the case was heard by the court without a jury.' The question in the case arises under the tariff act of third March, 1883, 22 St. 488. Schedule J, § 6, p. 507, contains this provision: (1)" Flax or linen thread, twine, and packthread and all manufactures of flax, or of which flax:cshall be the component material of chief value, not specially enumerated or provided for in this act, forty per centum ad'lJalorem." A subsequent paragraph of the same schedule is as follows: (2)" Seines and seine and gilling twine, twenty-five per centum ad valorem." The plaintiff corporation, whose business is the manufacture of fishing nets and seines, in the m6nths of February, March, April, and May, 1885, made seven different importations of gillinK into the port of Boston, from Liverpool, in all 45 cases. The merchandise was invoiced and entered at the custom-house as gilling twine. Upon the appraisement by the custom-house officials here, the merchandise was classified as linen thread, arid the collectorassessed upon it a duty of 40 per cent. ad val.orem, tinder the first clause of Schedule J, above quoted. The plaintiff in each instance paid the assessed duty under protest claiming that the article was dutiable under the second clause at 25 per cent. ad valorem as gilling twine. Upon appeals to the secretary of the treasury the decisions of the collector were affirmed, and the plaintiff then brought this suit to recover back the alleged excess, which amounted on all the importations to $1,685.85. All the proceedings in respect to the plaintiff's protests and appeals were regular, and taken in due season, and this suit was commenced within the time limited by law for bringing such suits. The merchandise after its importation was used by the plaintiff in the manufacture of gill-nets, and was imported expressly for that purpose. The article in question is No. 35 three-cord, unbleached linen thread, of superior quality, put up in half-pound balls, and was manufactured by the Scotch firm of W. & J. Knox at their works in Kilbirnie, Scotland. For more than 20 years thread of this description has been used by the plaintiff, and other net makers in this country, for the manufacture of gill-nets, principally for the fisheries on the great western lakes, the numbers of the thread used for this purpose ranging from 10 to 60. For many years before the tariff act of 1883 this kind of thread, of the manufacture of W. & J. Knox and other foreign makers, was imported under the name of gilling twiue, to be used in making gill-netS, and was invoiced and entered at the custom-house under that name, and was so designated on price-lists and trade-circulars of the foreign makers. For many years before the act no other imported article was known by the special name of gilling twine. One of the custom-house officers testified that he never heard or knew of any other imported article that was called gilling twine. On the other hand, the article is clearly not twine. It is not suitable for the uses which twine is commonly put to. It is made of flax from which the gum has been removed by boiling. It is flexible, without the
828
FEDERAL REPORTER.
stiffnesEl of twine, highly finished, capable of being used for sewing, and is largely ',used for machine-sewing in many trades. It is not· claimed by the plaiptiff in this suit that, in a general sense, it is anything else than linen thread, or that it differs in material or quality or mode of manuJacture from other similar thread. For many years linen thread of the same· kind: and quality has been both imported from abroad and made here in large quantities for many oth,er purposes than for gilling. It is used by boot and shoe makers, upholsterers, bookbinders, saddlers, and in many other trades. as sewing-thread. When imported for these purposes, it is invo.iced and entered as linen thread, and is so known in commerce and designated on price-lists and trade-circulars. That which is made here for these uses ds known only as linen thread. It is also made here for gilling purposes, and in such cases is inva;riably called "gilling thread.", never:','gilling twine." Of all that is made here or imported at least nine-tenths, and probably nineteen-twentieths is used for other purposes than as gilling. It also appeared that there is.a large, coarse twine made I)f hemp, which is importEd under the name of salmon twine, and is made into nets for gilling salmon. This article seems never to have acquired the name of "gilling twine" in the trade. There is also a cotton gilling twine which is made in this country, btlt never imported. It is certainly a matter of no little perplexity, upon the facts before the court, to decide what is meant by the term "gilling twine" in the second paragrapQ. It is apparent congress did not intend to let in all unbleached linen thread between the numbers 10 and 60 at the lower duty. Yet that consequence would Seem to follow if these importations are to bear onJy the lower rate. It is not to be supposed, in the absence of express provision to that effect, th{l.t it was intended to impose a different duty on the same article I;LcGording as it was used for one purpose or another,llof is it to be presumed that congress intended to designate the same article by two different- names in the same schedule. Nor is thereany provision in the act for.an entry in bond, such as one would expect to find if the rate of dutywas j.o ,depend upon the use for which the Congress might have provided that linen thread imported and used as gilling should be subject to a lower duty than when intended for other uses, but it has not done so. The general rule in the constructiOllof tariff acts undoubtedly is that words designating commodities as SUbject to duties,are .to be taken in their ordinary commercial sense..But a name acquired by a commodity in one of its minor and subordinate uses ought not necessarily to be taken as its commercial designation, when it has acquired another in its more general and extensive use. The term "gilling twine" can have a sensible meaning by making it apply to salmon twine, which is gilling twine. If the purpose of the framers of the act was to put a lower duty on linen thread as the debat in congress would indicate, they were cer)s used as tainly unfortunate in their selection of words to express the purpose. Taking both paragraphs together, the words" gilling twine" will better bear the construction of beingd\'lscriptive of a twine made to be used as gilling, sucltas the salmon twine already alluded to, than as designat-
UNITED STATES V. LOUISVILLE & N. R. CO.
829
jng, linen thread that may also be used for that purpose. Upon the whole case I am forced to the conclusion, though not without some hesitation and doubt, that the term "gilling twine," in the second paragraph, means twine that is made and used for gilling,-such as salmon twine,-and does not mean linen thread, although one of the minor uses of the latter is for gilling; and that the ruling of the collector was right. Judgment for the defendant.
UNITED STATESV. LOUISVILLE
& N. R. Co.
(Oircuit Court, D. Kentucky. January 24, 1888.) 1. INTERNAL REVENUE-TAXATION OF RAILROADS-AcT OF
1870. The act of congress of July 14. 1870, relating to the taxation of railroad bonds, was part of the general system of income taxation. and fixed a time When tI),at system should expire; and. in taxing the interest on such bonds as part of the corporate earnings. it applies only to interest actually paid. not to interest merely payable.
2.
SAME.
Where two railway companies consolidate, one assuming the debts of the ,other, this is apayment of such debts. as between such corporations, but is presumably not a payment from the "earnings" of the debtor. within the meaning of those internal revenue .laws which provide for taxing corporate incomes.
At Law. On demurrer. 'J. C" Wichliffe, U. S. Dist. Atty. and for plaintiff. . H. W. Bruce, for defendap.t.
Th08.
C. Bell, Asst. Dist. Atty.,
BARR, J. The plaintiff has sued the defendant to recover certain faxes which it is alleged are d_oe upon the interest paid on certain coupon mortgage bonds issued by the Memphis & Ohio Railroad Oompany. These bonds,are alleged to have amounted to $732,000, and were held by the Louisville & Nashville Railroad Company, and were paid by said company in .an arrangement made October 9, 1872, by whicl1, among other things, the two railroad companies were consolidated, and, the Louisville & Nashville Railroad Company assumed to pay all the indebtenness of the Memphis & Ohio Railroad Company, and did, as of that day, (October 9, 1872,) pay said $732,000 of bonds held by defendant, by assuming the payment of same under the terms of said article of consolidation. The petition, as amended, alleges that the interest which accrued on said mortgage bonds from December 31, 1863,toJuly 1, 1864, amounted to $36,600, and the tax thereon, at 3 per centum, was $1,098; and the interest which accrued on said bonds from July 1, 18!34, to July 13,_1866, amounted to $146,400. and the tax thereon, at per centum, was $7 ,320; and interest which accrued on said bonds from July 13, 1866, to August 1,1870, amounted. to $298,900, and the