REIBS 'V.
105
owner or importer himself would be entitled to sue the collector for the exclusion from the custom-house of the agent he sent there. Waiving that question altogether, it appears by the evidence that subsequent to the revocation of his permit, a change occurred. touching the employment of Col. 8laight. Some who prior to that time were his employers, and whose names were signed to the paper, which certified his agency to the collector, had since that time discontinued the employment. Now, despite the regulation or the order of the secretary of the treasury, Mr. Hedden was still entitled to be satisfied that Mr. Slaight, at the time of the subsequent application, did have an authorization to act for them from one or more importers, and, as it is conceded that the old authorization was defective in part, it was right and proper that he should do what his counsel undertook to do,-procure a new authorization, and present that. The earliest period at which that seems to have been presented to the collector-assuming that the transmission of it by the letter of July 22d was a suflicient presentation-was July 22d. That reduces the period for recovery-assuming there can be a recovery-to that subsequent to July 22d. For that period there is no proof of damages. All that there is here is a statement of the plaintiff that his compensation was proportioned to the total quantities of importations,-the total num her of packages, or the total number of stamps. The statute shows us the number of stamps which should be put on each package. We have further testim0l1y that between May 1, 1886, and May 1, 1888, such and so many stamps were affixed. There is no such segregation of the period as will show the number of stamps used or affixed bet\veen J nly 22d, or even July 13th, and the date of Collector Hedden's retirement. In view of the fact that it is in evidence on the plaintift"s own testimony that not all the importers of cigars and tobacco into this port were employing him subsequent to the letter of July 13, 1886, I Jilil to see that he has made proof sutlicient to claim any damages. The motion of the defendant for a dismissal of the case, and the directing of a verc1iet for the defendant without putting in any proof, is granted. Plaintiff excepts.
REISS
et al. v.
MAGONE.
(Oircuit OOu1't, S. D. New York. 1. CusTmrs DUTIES-AsSESSMENT-QUANTITY.
May 21,1889.)
Duties are to be paid only upon t.he actual quantity of merchanClise which is imported into this country and enters into its commerce, and not upon the original quantity thereof bought and shipped, SAME-I:SCREASED VALUE BY SHRINKAGE.
2.
Where, however. an importation has shrunk in weight from evaporation or other like cause, and such shrinkage has added a percentage of value, so that the actual quantity thereof which arrives is in its then condition worth more per pound in the markets of the cqnntry from which it came than the origIDal quantity thereof bought and shipped was worth per pound, the actual
lOG.
vol. 39.
,quantity should in app.raised at its, increaS'ed value per pound, and ,duty assessed upon the value tbereof so appraised, although the invoice describes the original quantity ail worth less per pound. ' 3!'SAME. ' .
But. to warrant ,such an of duty. the appraiser mllst first find , that, the actual quantity ;was worth per pound such a sum as would warrant the particular amount of dnties assessed. 4. SAME-CLASSIFIOATION-SARD-EI.LES.
Since'the passage of thetarifI act of March 3, .1883, fish caught in foreign waters, ,salted or pickled. and imported in ankers which have each a capacity of about 80 pounds or less,and not in barrels or half barrels. which have each a capacity, respectively. of about 200 and 100 pouuds, which were generally bought and sold by the trade of this country dealing therein at and prior to March 3, 1883, under the denomination of "anchovies" or" sardines." are dutiable at the rate of 40 per centum ad valorem under the provpsion for "anchovies and sardines, when .imported in any other form" than packed in oil or otherwise in tin boxes, contained in Schedule G of that act; but those that were'then generally bought and sold by that trade under the denomination of "sardelles" are dutiable at 50 cents per hundred pounds under the provision for "foreign-caught fish, imported otherwise than in barrels or half barrels, whether * * * salted or pickled. not specially enumerated or provided for in this act, " contained in the saIDe schedule.
At Law. The plaintiffs in 1886 imported from Amsterdam and Rotterdam certain fish, and in 1887 from Marseilles certain Castile-soap. The Castilesoap as invoiced was classified for duty at the rate of 20 per centum ad valorem under the provision for Castile-soap contained in Schedule A of the tariff act of March 3, 1883, (Heyl, New, 8.) Against the exaction of duty upon the Castile-soap as invoiced, the plaintiffs duly protested; claiming that duty should only be exacted thereon after making deduction or allowance for shortage of weight. The fish were invoiced as "sardelle," and were classified for duty at the rate of 40 per centum ad valorem as "anchovies," under the provision for "anchovies and sardines," "when imported in any other form" than packed in oil or otherwise, in tin boxes, etc., contained in Schedule G of the same tariff act, (Heyl, New, 281.) Against the classification of these fish as anchovies, and the exaction of duty thereon at the rate of 40 per centum ad valorem, the plaintiffs duly protested; claiming that these fish were dutiable at the rate of 50 cents per 100 pounds as "foreign-caught fish, imported othen-vise than in barrels or half barrels, ",-hether * * * salted or pickled,not specially enumerated or provided for in this act," under the provision therefor contained in the same schedule, (Heyl, New, 280.) Thereafter the plaintiffs duly appealed,and brought suit to recover the duty exacted on the difference betweeen the invoice quantity of the Castilesoap and the actual quantity .thereof aslanded, and on the difference between the duty at the rate of 40 per centum ad valorem exacted on the fish and dutyaUhe rate of 50 cents per 100 pounds as claimed by them. Upon the trial it appeared that the Castile-soap on the voyage of its importation from Marseilles to this country had shrunk in weight, by eyaporatiQn o1'.O,ther l;l0 that actual quantity thereoflanded, as returned by the government weigher, was less than the purchased quantityas invoIced and shipped at Marseilles; but that the appraiser hud tak,en the per ,at invoice value, and that duty had been
REISSV. MAGONE.
107
exacted on the invoice, and shipped quantity at its invoice value per pound as entered by the plaintiffs, instead of on the actual quantity landed at its invoice value per pound, as claimed by them after the government weigher had made his return. But it did not appear that the foreign market value of the Castile-soap when landed had been so enhanced that there had been no diminution of the total entered value of the invoice thereof in the principal markets of the country from which it was imported, notwithstanding its shrinkage in weight. The evidence of the plaintiffs' witnesses tended to show, as to the fish in suit, that they are called in Holland" anjovis," and in Germany" sardellen;" that they are caught only off the coast of Holland, while anchovies are caught off the coasts of Norway, France, Italy, and other places in the Mediterranean sea; that the fish in suit are a different species of fish from anchovies as well as from sardines; that the fish in suit are thick arid round and white, except when they are old, and then they are of a rusty color, and are imported into this country with their heads off, put up in brine made of salt and water, in wooden packages in the shape of barrels, called ankers, half, quarter, eighth, and tenthankers; thatankers are of about 80 pounds capacity, or less, while a barrel and a half barrel are of about 200 and 100 pounds capacity, respectively; that anchovies are a flat fish, and in that respect, like sardines, have black backs, are smaller, shorter, and less fat than the fish in suit, and are imported into this country with the heads on, and generally put up in spices andvinegar or hops; that the fish in suit·are of much more value than anchovies j that the fish in suit are almost entirely sold to the German trade in this country, and at and prior to the passage of the act of March 3, 1883, were generally bought and sold in this country under the denomination of "sardelles." The evidence of the defendant's witnesses, on the other hand, tended to show that the fish in suit were then and there generally bought and sold under the denomination of "anchovies:" Both sides having rested, the defendant's counsel moved the court to direct the jury to find for the defendant as to the soap; citing section 2900, Rev. St. U. S., and article 604 oftreasuryregu]ations issued July 1; 1884, and KimbaU v. Collector, 10 Wall. 436. The plaiMiffs' counsel,in of position, cited section 2921, Rev. St. U. Sj Mnrrir)tt v. Brune, 9 How. 619; U. S. v. Southmayd, ld. 637 j Lawrence v. Caswell, 13 How. 488; RD,j Austin v. Pf.aslee, 10 Month. Law Rep. (N. S.) 443; Balfour v. Sullivan, 8 Sawy. 648, 17 Fed. Rep. 231; and Weaver v. Saltonstall, 38 Fed. Rep. 493. This motion the court denied, and the plaintiffs' counsel thereupon moved the court to direct the jury to find in favor of the plaintiffs as to the soap. Albert Comstock and Everit Brown, for plaintiffE'. Stephen A. Walker, U. S. Atty., and Thoma8 Greenwood, Ass!: U. S. Atty., for defendant. LACOMBE, J., (oraUy.) The importer has to pay duty only upon what he imports. If his importation weighs 100pourids'When it leaves the other side, and 80 pounds only when it comes here, hElpays on the 80
,108
FEDER,Ak
39.
pounds which enters into. tlwcommerce of this country, and not upon the 10Q pounds he bought On the other side.1 It may happen, however, that .the shrinkage in weight has' added a ,percentage at value, and that the ,80 pounds which arrives. is, in its tbencondition worth more per pound in the markets of the country from which it came than the original 100 pounds was worth per pound. To illustrate, there may be a difference in the foreign market between 80 per cent. soap and 60 per cent. soap. If what reaches this co.untry, is in fact 80 per cent. soap, it should in fairness be appraised at its value as 80 per cent. soap in the foreign markets at the time of exportatipn, although the invoice may describe it as 60 percent. soap at a lower value. But ofconrse duty should he nssesRodonly upon the ,amount actually imported. Such a method of appraisement seems to be in accordance with the provisions of the statute. In order, however, to.'warrant such an assessment of duty, the appraiser must first find that the 80 pounds imported was worth per pound such a sum as would warrant the particular amount of duty assessed. In this case there is no evidence that the appraiser has so found, and, on the contrary, the evidence is that the per pound value of the article imported was the same as that stated in the invoice, which would make the per pound value of the 80 pounds no greater than the per pound value of the 100 pounds. In view of the state of fhe evidence, therefore, I shall, as to tho soap, instruct the jury that their verdict must be for the plaintiffs. The only question of fact Jor the jury, therefore, is whether the fish covereu by the other entries are dutiable under the 280th or the 281st paragraph of the tariff act of 1883. These fish are caught in foreign waters. They are salted or pickled. They are imported here in ankers weighing about 80 pounds or less, and, not in barrels, which weigh about 200 pounds, or in half barrels, which weigh 100 pounds. So illT they are within the description of the 280th paragraph,-" foreign-caught fish, imported otherwise thun in barrels or in half barrels, whether fresh, smoked, dried, salted,or pickled." That is where the plaintiffs claim that they should be classified, and they fall .within that description, unless they are found specially enumerated or provided for elsewhere in the tariff act. The only other place where it is contentled that they are specifically provided for is in the next paragraph, which lays a duty upon anchovies and sardines packed in oil or otherwise, and imported either in boxes or in :my other The only question, then, for you to determine is whether or not these articles are anchovies or sardines. If you find them to be anchovies or sardines, your verdict must be for the defendant; otherwise yOUl' verdict must be for the plaintiffs. These tariff acts are intended, of course, for the community at large) and mainly for that part of the conll11unity which deal in the articles covered by the tariff acts. Therefore, in determining the meaning of the words used by congress, it is appropriate to go to the particular trade which handles the article and deals in it, and learn from those in that trade how the particular . articleis known iq.,the,trade and C0111merCe of this country. For that witnesses in tbe trad{j have been called to the stand by the plaintiffs
NIX V. HEDDEN.
109
and the defendant, and you have heard their evidence. Taking into consideration what they have told you with regard to the trade understanding touching these particular articles (Exhibit S-L) imported by the plaintiffs, it is for you to determine whether they are sardines or anchovies or not. !fyou find that they are sardines or anchovies, your verdict must be for the defendant; otherwise your verdict must be for the plaintiffs. Upon that question the burden of proof is upon the plaintiffs, for the case comes into court. after a finding by the collector that they are sardines or anchovies, and that finding, which makes out a primn facie case, is to be overthrown by the plaintifls oy a iilirpreponderance of uroof. The jury rendered a verdict for the plaintiffs.
NIX
HEDDEN.
(Circuit Court, S. D. Neln Y01·k.
May 14,1889.)
1.
CUSTOMS DUTIES-CONSTRUCTION OF STATUTES.
Where the words in a statute imposing duties on imported merchandise are not technical, their interpretation is a matter of law for the court. Following jJ1arvel v. Nel'ritt, 116 U. S. 11, 6 bup. Ct. Hep. 207. The legislature must be presumed to have chosen language with regard to those for whom it is designed to constitute a rule of commerce, viz. the community at large. Following Arthur v. Jl1orl'ison, 96 U. S. 108. In the absence of proof that words have a different acceptation in other parts of the conn try from that which they have in the district where the court is sitting. it will be assumed that the use of the words is the same throughout the community at large. In the common and popular acceptation of the words, the term" vegetables" includes "tomatoes," and the term "fruits" does not.
2. SAME.
3.
SAME-PRESUMPTIONS.
4. 5.
SA)IE-Cr,ASsIFICATION-ToMATOES.
SAME.
Tomatoes imported from Bermuda are not free of duty by virtue of the provi'sion)n the free list for "fruits, green, ripe. or dried." bnt are dutiable at 10 per cent. under the provision in Schedule G of the tariff act of 3, 1883, for" vegetables in their natural state. "
At Law. This was an action against a former collector of the port of New York to recover duties alleged to have been improperly exacted. The plaintiffs in the spring of 1886 imported tomatoes from the island of Bermuda. The collector classified them as" vegetables in their natural state," and assessed them for duty at 10 per cent. under the provision therefor in Schedule G of the tariff act of March 3, 1883. The importer protested, and claimed that by virtue of the provision in the free-list of the same act for "fruits, green, ripe, or dried,"they were exempt from duty. This suit was brought to recover the duties exacted. Upon the trial the