FEDEltA,L REPORTER,
vol.AO.
which used, here, is unsatisfactory. The wordl'perfumery" is t;here definedHbya'reference only ,T""fthat is, Per(umes. in.generalj"and,whenHPerf1.'ltne"4s ,turned to, we find thatthe only definitio,n given is," Ai$ubstancethatemits a scent or odor, w}:lich affects agreE;:al;.rlythe organs ()f smelling.";< Of. courSe. new-mown hay is within this definition,. while. in one !}lay be said to be a perfume, yet the; ,meaning wliich \Ve attaoh to' the word "perfumery" in daily life is much lXIor.erestricted. The wOlld"al!lgElnerally used, means not only a substance:which emits a scent or odor, but also one which is handled, bought and sold, and used, fOl1rthe purpose of obtaiqing from it such odor whenever required. . But, of the dictionary definition of the word "we need not particularly concern ourselves. This tariff act is concerned with the trade and cQmmerceof the country, and it istherefore proper to turn to that trltdeand commerce for the definition ,of words which are used in the act. Two definitions have beenproifered here as to"lVhat the wQrd"perfumery" the trade. One witness, called the government. describes it as "anything which gives a pleasant 9dPf,j',' the articles in suit he call$.crude perfumery. That is the claim o{ the government. The witneaseson,the other side say that in trade the word "perfumery" is confined.· to ·the finished product. that can be utI.edby the consumer, and that until it is put into such a condition that the consulner into whose hAnds it. finally COmes,can use it for the purposefor which perfumery is used by individuals, it is not "perfumefy,/' as knQwn, in the trade. . .· j It is for you tode.termine, in the first place, which of those definitions,is established by the testimony in this case to be the trade definition. When you reach a conclusion upon that point, you will next say Whether ornot.these particular articles fall within that definition. Verdict plaintiffs.
CLAY
11.
MAGONE, Collector. October 28,1889.) . . . . ,.
(Oircu.tt Oourt, B. D. New York. CuSTOMS DUTIES-CLASSIFIOATION-CELERY SEED.
Since the passage of the tarifr aot of March 3, 1888, (22 U. S. St. at Large, 0. 121, p. 488,) such variety of celery seed as is not intended to be sown or planted to raise celery to be .by l)1an, is not medicinal seed, but an aromatic seed, and is not edible, and is' in a crude state, and not advanced in value or condition by refining or grinding or by other process of manufacture, is not dutiable at 20 'per centum.. (ld valorem as l·garden seed, " under the provision for" garden seeds, except seed of the sugar-beet, " contained in Schedule N of said tariff act, but is free of duty as . "l!eed, "unller the provision for "lleeds"'containedin the free-list thereof. ...' · ' , : . I, " \
Action to recover back customs duties. ";rh e plaintiff, on October 5 and December 12, 1887, and February 16, 1888,importe.d from Marseilllls, France, into the port of New York 2..P,In \',. Hales,of. celery seed. This celery seed, pursuant to the decision,of the ! q'., . ·
CLAY t. MAGON&
231
treasury department, rendered March 23, 1887, and numbered 8,131 j was classified by the defendant, as collector of customs at said port, as "garden seeds," under the provision for "garden seeds, except seed of Schedule N of the tariff act of March 3, the sngar:-beet," contained 1883, (Tariff Index, new, par. 465,) and duty thereon, pursuant to such provision, was exacted of the plaintiff at the rate of 20 per cel,ltum ad valorem. Against this classification and exaction the plaintiff- made sufficient and seasonable protests, claiming that this celery seed was free of duty as "seeds of all kinds, except medicinal seeds, not speciallyenumerated or provided for" in the tariff act of 1883, under the provision therefor contained in the free-list thereof, (Tariff Index, new, par·. 760,) or as "seeds aromatic, which are not edible, and are in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture" an'd not specially enumerated or prov.ided for in this act" under the provision therefor contained in said (Tariff Index, new, par. 636.) Thereafter the plaintiff, within the time required by law, duly made appeals to the secretary of the treasury, and, within 90 days after adverse decisions were made thl;lreon by him, duly brought this suit to recover the duties exacted as aforesaid. Uponihe trial of this suit it appeared that each of the aforesaid 23 bales contaiped about 200. pounds of celery seed; that this .celeryseed was a very cheap article, and was always purchased without ,statement from the seller, or marks on the bales or packages containing the same, to indicate what kind of celery it would produce if sown or planted, or that,ifsown or planted,it would even germinate; that it could not, therefore, be sold to those who sow or plant celery seed to raise celery; that while, to some small extent, it was used in making medicinal prepa:ra,tions, it was generally used in making celery salt and .other condi.. ments for soups and other articles of food for mankind; that it was not medicinal seed, but aromatic seed; that it was not edible, and was in a crude state, and not advanced in value or condition by refining p;rind. ing, or by other process of manufacture; that at and prior to the passage of the aforesaid act of 1883 the term "garden seeds" in trade and commerce of this country meant seeds that were sown or planted to produce plants, vegetables, or other crops that were generally eaten by mankind; that at that time in this country celery seed sown or planted was sown or planted to produce celery which was ex;clusively so eaten; that at that time much the greater portion of celery seed produced in this (,'()untry was sown ol'plantedfor that pUrpose; and tpat at that time in this country celery seed sold to be sown or planted was sold with marks, etc., to indicate and guaranty the kind of celery it would produce. Comstock &; Brown, for plaintiff. Edward Mitchell, U. S. Atty., and Tlwmas Greenwood, Asst. U. S. Atty., for defendant. LACOMBE, J., (chargingjury.) The method offixingratesofduty, by varying them according to the uses to which articles imported may be put, is, no doubt, a very philosophical and logical way of classifying articles for duty
232
FEDERAl, R1i:PORTER,
vol. 40.
under the tariff, but in practice it is at times extremely inconvenient; so much so that, unless the language olthe tariffclearly indicates a plain intent on the part 'of congress that the article legislated upon should be classified according to its use, a court should be cautious in determining the rate of duty by the application of such test. Of course congress does repeatedly legislate in that way. Thus we have a provision for substances of all !kinds used for manure, and one for animals imported for breeding purposes; and there are a number of other instances in the statute where imports are classified according to their use. But, unless the language of the statute plainly requires the test of use to applied to a particular artide, the dutiable character of any particular importation is not to be determined by an inquiry into its ultimate use. In the case at bar we have a word, or a phrase rather, which, as used, leaves it somewhat uncertain as to whether congress did or did not mean to apply the test of use. The phrase is "garden seeds." This may mean either seeds intended for use in the garden, orthe class of articles known commercially as "garden seeds." There is testimony in the case that there was a distinct trade meaning of the phrase "garden seeds," known in trade and commerce of this country, and that congress adopted the phrase and put it in the tariff act. With regard,however, to the determination of the question whether or not we should interpret that phrase here as meaning the Same thing as "seeds used or to be used for the garden," there is nothing left for this court to decide. That question has been considered by the supreme court in the case of Ferry v. Livingston, 115 U. S. 542, 6 Sup. Ct. Rep. 175, and the rule there laid down is, of course, controlling here. There, this same section being before the court, and the question being whether certain seeds then under consideration were to be considered as "garden seeds" or as "agricultural seeds," the court held ,indeed, that it would not be sufficient, to show that they were not" garden seeds," to show that they were used both in the garden and in the field, but they went further,and indicated that if it appeared that the seeds in question (the particular cabbage seed then before the court) belonged to a variety not intended to be used to raise cabbages to be consumed by man, then they could not be regarded as "garden seeds." Now the same construction is to be applied here; and if we find (and that is the question which goes to you for your determination) that the celery seeds imported here were of a variety of celery seeds which was riot 'intended to raise celery to be consumed by man, then it is not within the provision -fOf "garden seeds," and your verdict must be for the plaintiff. Verdlct for plaintiff.
m
BE LAWLER.
233
1ft re 1.
LAWLER.
(Oircu«t 0000 N. D. Georgfa. ARMY AND NAVY-ENLISTMENT.
October 28, 1889.)
A petition for discharge on habeas corpU8 of one arrested as a deserter from the army alleged that petitioner was under 16 years when enlisted; that he enlisted through the fraudulent representations of one J., the recruiting officer; that his father's written consent was obtained by means of such representations j and admitted the desertion while still a minor. The return denied the fraud, and presented the written consent of petitioner's father to his enlistment, and petitioner's sworn statement that he was 20 years and 6 months old at enlistment, and alleged that J. was a private, and not the recruiting officer, who was one P. Held. that, as the return was neither demurred to nor denied, it must be taken as conclusive as to al1 the facts therein set forth. '
2.
SAME-EvIDENCE.
Evidence of petitioner's relations, that he was under 16 years when he enlisted, is not sufficient to "establish that fact against the sworn statement of the petitioner and the record in the family Bible, showing that the birth of petitioner, as recorded, had been changed from 1870 to 1871, and the record of the birth of a younger'siliter in 1871 entirely erased. ' :" corpu8.
Appeal from District Court. Habeaa Blalock & Birney, for relator. S. A. Darnell, for respondent.
PARDEE, J. A. C. Lawler filed a petition in the district court of this district, setting forth that he is a citizen of the United States and of 'the state of Georgia; that he is forcibly and illegally detained and deprived of his liberty in the United States barracks, at the military post in the city of Atlanta, by one Henry H. Clawson, in command of said by virtue of a pretended claim of authority of said Clawson, as agent of the United States, to hold petitioner upon the charge of being a deserter from the army of the United States. The petitioner further alleges that some time in the month of October, 1886, he enlisted as a private in the United States army,at the recruiting station in Atlanta; that at t.he tiIne Qf said enlistment he was a minor under the age of 21 years, to-wit,of the age of 15 years and 6 months, and that therefore said enlistment was without authority oflaw, and contrary to law and void; that he was induced by fraudulent representations to enlist as above stated; that therewas a written consent to said enlistment by petitioner's father, but that said written consent was obtained by fraudulent representations made by one Hayes Jemmison, recruiting officer, and agent of the United States t to petitioner's father; that said fraudulent representations, both to petitioner and his father, were to the effect that petitioner would be sent regularly to school, and would have other advantages in the army which he could not otherwise obtain j that all said representations proved to befalse, and were known to said Jemmison to be false when he made them; that afterwards, on the day of April, 1887, and while still a .minor, petitioner left the said army, and has not since returned, and that. on the 27th day of September, 1889, petitioner was arrested in the city of Atlanta, and is now held illegally and against his will. Petitionerprayed for '8; 'writ ()f habeaa corpus, which was issued and served, and.