,
II. 8EEBERPER. '.
69
Ulles tQ they were applie,d, and under section 2513 (,)f said act, q.s ar;ticle!! ml!-nufactured, in .whole or in part, 110totherwise. provided for; paid ..the duty under protest; appealed to the of the treasury, by whom the action of the collector was affirmed; and brought this suit in apt time to recover the excess of duties so claimed to have been paid. The goods in question embrace three kinds of tiles;. all of which are glazed: (1) A hard-baked,hard-bodied tile, the body being of a brown or bricI.tcolor, which artl used for hearths, and to some extent for wainscotlng, and .for the breast or front of fire-places, and on the floors of vesUbules, entrance halls; bath-rooms, and conservatories in private resThey are also laid sometimes as a border in the floor of rooms, around next to the base-board. (2) Glazed tiles made of clay, Cornwall stone, and flint, which gives them a white or light color, and makes a more porous and white or light-colored body, which more, readily receivestheglaze and colors applied thereto; and these, as the proof sho'Ys, are used for chimney fronts, and to some extent in hearths, and for borders floors, and for floors in vestibules and bath·rooms. While trey may be said to be hard-burned, they are not of as firm a texture as the hard-bo<;1ied brown tiles first mentioned, and are much more easily broken,and the gla2;e thereon much more readily cracked or defaced, by reason of the material being more porous, and not as strong. (3) Moulding tiles intended for bases around the sides of the room. to take the place of the ordinary base-board, and surbase and skirting tiles; the surhase and skirting tiles being also sometimes used for the edges of hearths, and to lay along on the floor as a trimming to the base-board tile, and also. for chair-rail strips. Plaintiffs' contention is that all the flat glazed are dutiable at 20 per cent. ad valorem, under the seventh clause of Schedule B, as "paving tiles," and that the moulding, skirting, and surbase tiles are also dutiable at 20 per cent. ad valorem, under the similitude clause of section 2499, as articles manufactured, in whole orin part, not otherwise enumerated under section 2513 of said act; and on this ground it is sought to recover by this suit the excess of the duties so assessed over 20 per cent. ad valorem. The proofshows that there has been for many years a tile manufactured abroad, and imported to this country, and also manufactured ill this country, made of earthy materials, with a plain, unglazed surface, the materials being pressed very hard and firmly together, and fired or burned so as to make them very hard, or what is known as "hardbaked," which are known in the trade as "paving tiles," and used quite extensively floors in the vestibules of churches, and the halls and vestibules of public and private buildings; and the hard-baked, hardbodied tiles now in question are made of the same material as such plain, unglazed paving tiles, and are in all respects similar to the plain, hard-baked, unglazed tiles, except that the tiles in ques.,. ti011, being glazed upon one side, will, when laid in the floor with the glazed side upwards, make a floor with a glazed surface. As has already been said, the white-bodied tiles are composed of different material, and made intentionally more porous, for the purpose of making them of dif-
60
,FEDERAL REPORTER,
vol. 40.
ferent colors by means of the glazing; and {he white body is found to receive and hold this colored glazing much more perfectly than the hardburned tile before mentioned. It seems to me that the hard-bodied, hard-baked, glazed tile in question, while not so exclusively used for floors as the plain, unglazed tile's of which I have spoken, are, at the same time, so far susceptible of use, and have been applied to use in floors to such an extent, as to bring them fairly within the designation of "paving tiles." It is true that, probably, for public halls and buildings where there was much use, where they were walked upon without the intetposition of a carpet or rugs, the glazing would soon be so far defaced as to make them undesirable for such a purpose; but for hearths and as borders tor floors, where the main portion of the wear and service does not come, and in vestibules and bath-rooms, where they are protected by rugs, these tiles are without doubt used, and I can see no reason why they should not be considered as paving tiles, and classed with the unglazed tiles used for the same purpose. The white-bodied tiles in question are so brittle in their structure, and are so soft in thei! material or composition, that it seems to me they could hardly be used on any floor where they were to receive any service; being so fragile and destructible as to make them of little value for such purpose. I think the burden of proof is clearly in favor of the conclusion that their main use is in wainscoting, and for the breasts of fire-places" and in positions where they do not receive any heavy service. I do not, therefore, think that they come within the designation of "paving-tiles," under the seventh clause of Schedule B. The moulding, skirting, and surbase' tiles are made of the same materials as the glazed paving tiles before mentioned, but they are ofirregular shapes,-some of them being in the form of an ogee moulding; others, a longitudinal segment of a cylinder,-not adapted for or intended to be laid as floors, but intended to take the place of the wood baSI? boards and chair-rails in a room. They clearly are not paving tiles, and are manifestly intended for other uliles than paving; so that their use does not entitle them to be classed as paving tiles, under the similitude clause. Nor are they manufactured articles not otherwise enumerated or provided for, so as to be admissible at 20 per cent. duty, under section 2513, as they clearly fall within the description of glazed earthenware not specially enumerated 'Or provided for, under clause 4 of Schedule B, where the collector classed them. I am therefore of opinion that the collector erred in not classing the hard-bodied, hard-baked, brown tiles as "paving tiles," but that the white-bodied tiles, and the moulding, skirting, and surbase tiles, cannot be admitted at a duty of 20 per cent., either as paving tiles, or under the provisions of sections 2499 or 2513, as contended by plaintiffs. There will be a finding for the plaintiffs as to the hard-bodied. glazed tiles only.
LESHER 11. SEEBERGER.
61
LEsHER
et al. "'.
SEEBERGER,
Collector.
(Oircuit Oourt, N. D. lZUnO'ls. July 18, 1889.) CuSTOMS DUTJlIB-SILB: FABRIOS.
A woven fabric, used for the lining of coats, of which one-slxtb of the m.aterialls silk and the rest cotton, and in which one proportion in bulk of silk is worth as much as seven proportions of cotton, is properly assessed fi)r duty, under clause 888. Heyl's Arrangement of the Aot of Congo March 8, 1888. at the rate of 50 per cent. ad valorem. as manufacture of silk and cotton. of which silk is the' oomponent. material of ohief valne.
At Law. Action to recover duties paid under protest. P. L. Shuman, for plaintiffs., W. G. Ewing, U. S. Dist. Atty., and G. H. Harris, Asst. U. S. Atty., fbr defendant. BLODGETT, J. Plaintiffs imported a quantity ofgoods invoiced as "silkstriped cotton satins," being a light woven fabric mainly used by tailors for linings for coat-sleeves and the hacks of vests. The collector assessed the same for duty as manufactures ofBilk and cotton, silk being the component material of chief value, and assessed duty thereon at the rate of 50 per cent. ad valorem, under clause 383 of HeyJ's Arrangement of the Act of March 3, 1883. The plaintiff, insisting that the component material of chief value in said goods was cotton, paid the duties assessed under protest, tOQk an appeal to the secretary of the treasury, by whom the action of the collector was affirmed, and now brings this suit to recover back the excess of duties demanded, insisting that said goods were dutiable, under clause 324a of Heyl, "as cotton cords, braids, gimps, galloons, webbing, goring, suspenders, braces, and all manufactures of cotton not specially enumerated or provided for in this act, 35 per centum ad valorem." The proof in the case shows that the filling of the goods in question is wholly of cotton, and thatthe warp is made of alternate stripes of silk and cotton, the cotton stripes being about twice as wide as the silk stripes, so that about one-third of the warp may be said to be silk. Assuming that all the filling and two-thirds of the warp is cotton, this leaves onesixth of the entire material consisting of silk; and the proof further shows that the relative values of the silk and cotton are in the proportion of one is, one proportion in bulk of silk is worth as much as ' to seven proportions in bulk of cotton; while the proof shows that, where the proportion of silk is 12 per cent. or over in bulk. silk would be the component material of chiefvalue. The proofin this case showing that the silk in these goods is equal to 16! per cent. of the entire bulk, there there can be no doubt that the collector correctly classed these goods as silk, and that they were properly dutiable at 50 per cent. ad tJalorem.
02 ,
.
(Otrcutt Oourt, S. D.
Oq,l1!ornw"Aug11st 18, 1889.l
lLUJ1US CORPus-DENIAL BY SUPREME COURT ON ApPBAL-.,RlINJjlWAL QIl' ApPLIOATION.
,Where a petitioner for a writ,pfhabmll,oorpu8 appeals to the UIlited States su· ,preme court from a jUdgment of t1;le Qil'ouit Qou;t:t denying his aPPlicationhvoluntamly,omitting a material portion bf<his,oa,se, he cannot, afterflloUing on t e appeal , upon the rellew 'his application before another court or justice of . the United, States upon tlle the additiol:\ of the matter thus omitted, without first having obtained leave for that purpOSefroIQ. the supreme court. The question is entirely different when subsequently occurring events have changed the situation ot the petitioner so as in fact to present a new case for con· sideration. ' . ,
, At:/plica,tion of ThomasJ.Ouddy ment on a Writ of Habea8 Corpus. J. A. Ander8on, for petitioner. George,J. Denw,U. S.
from Imprison-
'
FlEw, Justice. The petitionel' applied to me some days ago in San Francisco for a writ of habeasCO?'pus,alleging,that he. is unlawfully impJ,'isonedby the marshal of the United States for theaouthern district of California, and the warden of the jail of Los Angeles county, contrary to the constitution and laws of the United States; that such imprisonment,is had Imder and by virtue of a wal'i\'ltnt of commitment based upon a judgm..ent oBhe district court of the UnioodStates for the southern district of California, adjudging him guilty of contempt, and sentencing him to imprisonment in that jail for the period of siJt months. An order was thereupon made that. a writ issue, to be directed to the marshal, and made returp,able before. me at thisp1acel' Los Angeles, on the 10th instant. The petition sets forth the judgmeptof.the district court, rendered on the 13th of February, 1889, upon which the writ of commitment was issued under which the petitioner is held. It is ·asfollow.s·: "Whereas, in the progress of the trial of the action of The Untted States of Ame1'ica v. W. More Young, ontbe 12th day of February, 1889, upon the to his qualification examination oftheterm·trial juror to sit liS a trial juror in the said action, .the said MCGarvin testified, among otller things, in effect, that on the day previous he was approached by one ThomaS J. CUddy, with the object on Cuddy'S part to influence his (MeGar\ vin's) action as a juror in the said casein the event that he should be sworn to try the said action; and whereas,'from the testimony, this court, on the s;tid 12th day.of February,1889. entered an order directrng the said Thomas J. Cuddy before this court, at the court-room thereof, at 10 o'clock on the 13th day of February, 1889, why he should not. be adjUdged gUilty of a contempt of this court; and whereas, in to the saidcitation, said ThomasJ. CUddy'did, on'the said 13th day of February, 1889, appear before the saidcdurt; and whereas. testimony was tl\en lind there introduced in respect to the matter both for and against him.-the court, having duly consid. ered the testimony, does now find the fact to be that the said Thomas J. Cuddy did, upon the 11th day of February, 1889, approach the said Robert McGarYin, at the time being a term juror duly impaneled in this court, with a view to improperly influence the said McGarvin's action in the case of the United
EX 'PARTE
CUDDY.
83
America agMnlit the said Young in the evenidhe said McGarvin should be sworn asa juror in said action. Now, it is here adjudged by the courttbat the said Th@masJ. Cuddy did thereby commit a,contempt of this eOUJ;t, fOr which contempt it is now, here ordered and adjudged that the said Thomas J. CUddy be frnprisoned in the county jail of the county of Los .Angeles far the period of six from this date, and the marshai of this districtwiUexecute this judgment forthwith."
The petition sets forth the' proceedings taken by the court, and alleges that tpetransaction which was the basis ,of tbecharge,agltirist the petitioner, a:qcl for which the judgment was rendered, took place,on the 11th day of February, 1889, when the district court was not in and nearly a quarter of a mile distant from the court-house in which that court is held. He therefore claims that the district courOlad no jurisdiction to try and sentence him for the alleged contempt, because the act charged as such wasc'ommitted at the time and place designated, and was not ad;judged to have been done corruptly, or by threats or force. ':l:'he :purport of the. objection is that. the act charged as a was not committed in the presence of the court, or 80 near thereto as to obstruct the administration of justice; and therefore did not present a case withillthe power of tpe court to punish summarily, under section 725 of the Revised Statutes, and therefore that the ju,dgment was illegal and void. 'fhat section reads as follows: "The said courts (of the United States)"shall havepower. · · to punish by fine or imprisonment, i'J,t the discretion of the court, cl)ntempts or theh:autbority: provided, that such power to punish contempts shall not be construed ,to extend to any. case 'except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice; the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party. juror, witness, or other person, to any lawfnl writ, process, order, rule, decree, or command ofsaid courts." Themarshal returns the wa.rrant of commitment under which he holds the prisoner. By consent of parties the record in the case of the petitionerbefure the district court and in the supreme court of the United States is also presented. By that record it appears that the petitioner t OJHhe9th day of April t 1889, applied to the district court for the southem district of California for a writ of habeas corpus in order that he might be discharged from'the imprisonment now complained of, asserting, as now, th,at the same was illegal for the reason that the court had no jurisdiction wtry and sentence him, because ,the matters set forth in the judgment do not constitute any contempt under section 725 of the Revised Statutes, and because the judgment was not founded upon proceedings'in due cburse of law; that the district court, after due considthe repplication for a writ; that thereupon an appeal was taken from the judgment to the supreme court ofthe United States, where, after argument and due consideration, the judgment was affirmed. 131 U. s. 280, Ct. Rep. 703. The additional matter set forth in the present onl.r of the testimony which waS before district court when 'thiS ques'tionofcontempt.charged againstthepetitionQr was