LLOYD 'D.

M'WILLIAMS.

261

The defendant raises the objection that the plaintiffs. citizens of Massachusetts, cannot sue in this court because the defendant is a corporation created by the laws of Massachusetts as well as Rhode Ish-md. The 8upremecourt have held this abjection to be invalid in Railway 00. v. Wkitton, 13 Wall. 270, 283. Mr. Justice FmL:D, delivering the opinion of the court, says: "But it is said, and here the objection to the jurisdiction arises,' that the defendant is also a corporation under the laws of Illinois, and therefore is also a citizen of the same state with the plaintiff. The answer to this position is obvious. In Wisconsin the laws of Illinois have no operation. The defend· ant is a corporation, and as such a citizen of Wisconsin by the laws of that state. It is not, then. a corporation.or a citizen of any other state. Being there sued, it can only be brought into court as a citizen of that state, whatever its statuS or citizenship may be elsewhere." I am of opinion. that judgment should be entered for the plaintiffs for the amount claimed, not exceeding the ad damnwm of the writj and it is So ordered.

LLOYD 'D.

MCWILLIAMS, Collector.

(lHrcuit Court, D. Rhode Island. May 28,1887.)

1.

CuSTOMS DUTIES-RATE-INGREDIENTB-ALIZAIUNE ASSISTANT.

tor-Oil.

2.

Alizarine assistant. used as a mordant by calico printers, the principal in· gredient in which is castor-oil, is chargeable with a duty of 80 cents per galIon, under section 2499 (known as the" similitude clause ") of the act of March 8, 1888,. which provides that. on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at whichtbe component .materiill of chief v:alue may be chargeable, that being the duty on. cas-

SAME-CONSTRUCTION OF LAW-EXCEPTION.

,The phrase" chemical compound or salt, "in section 2502 of the act of March 8, 1883, imposing a duty of 25 per cent. ad valorem. is too general to be cons.idered an enumeration, so as to take an article out of the operation of the si. militude clause of section 2499 of said act.

At Law.

Charly L. Woodbury and J. P. Tucker, for plaintiff. David S. Baker, Jr., U. S. Dist. Atty., for defendant.

COLT, J. Upon this importation, known as "alizarine assistant," and used as a mordant by calico printers, the collector imposed a duty of 80 cents per gallon, under section 2499 (known as the "similitude clause") of the act of March 3,1883. The case was heard by the court, jury trial having been waived. The import in question is manufactured from castoroil, sulphuric acid, and soda, and is soluble in water. The principal ingredientsare castor-oil and sulphuric acid. The duty upon castor-oil is 80 cents a gallon. The collector. assessed the same duty on alizarine assistant under that paragraph of section 2499 which provides that,on all articles manufactured from two or more materials, the duty shall be.

.FEDEur'; :ItEPORTER..

.lije$$e!l aUhe :higbesti'ates tnecomponent material of'chiefvAlue .. maybe ch4rgeable.The· plaiotiff insists that the impQftwas subject tOIL duty of 25 percent. «d valOrem, under the chemiCal compound o1l:luseof.seeuon 2502 of tbeMtof March 3, 1883, Qr. to a duty of 20 per-cent./Uncler section 2513, as anon::enumerated manufactured article. Section 2502 provides as follows: . .' : "All- preparations known expressed oils,distilled oils, ren,dared oils, alkalies, alkaloids, and all com.binations of any of, the foregoing, and aU_c1lemical compounds and salts, by whatever name known, and notspeciaHy .enumerated o.r,provided for in this act, twenty-five per centum ad VaZQ1·em." It is "said that alizarine assistant is-First, il combination of an expnissed,oiland analka,lij second,a'.cbemical compourldj third, 4, salt. I do not think alizarine assistant can properly be it combinaexpressed oil and an alka).i. An expressed ,oil and an alkali ,tion of formpart'qfthe combination, but the combinatioriitself is made up of at leasf 6neother important element, namely, sulphuric' acid. Ifalizarine assistant is dutiable under this clause. it must be claSsified asa chemical compound or salt. The plaintiff has sought to prove that it is II. chemical compound, while the contention on the part of the government has been that it is not a true chemical compound, but a mechanical mixture. But the government takes the further position that, aEisuming it to be a chemical compound, it was properly chargeable with the duty on castor-oil under section 2499, and not with a duty of 25 per cent. ad valorem under the chemical compouud clause. If this point is well taken, it is In support of this position the govevident that we need go no ernment says that the words, "not specially enumerated or provided for in this act," control and limit the chemical compound clause, and that is provided for under section 2499, in that it.s component material of chief value is castor-oil, which is specifically enumerated in the statute; and, further, that the term ".chemical compound" is sogeneral,that it ,cannot be said to enumerate alizarine assistant within the iritentof the statute, and that therefore it is a non.enumerated article, and so within the similitude clause. On the other hand, the importer contends that articles under the tariff law are designated not only by their commercial name,bnt ,by special description, and. that the similitude clause is not applied ifthe article comes within a special description, because such description is an enumeration of the class of articles covered by. it; and that "all chemical compoundR, by whatever name known, " is, a term of special description intended by congress to cover those chemicll.l.compounds not specifically enumerated in Schedule A, and therefore thntit embraces alizarine assistant. The leading cases cited , by theimporteJ'r are Arthur v. Sus.'3jield, 96 U. S. 128; Smythe v. Fiske, 23 Wall. 374.,.,". .. In Arthur ;\0;. the import was spectacles. The collector held JSubjecHo sduty of 45 per cent. under the third section of the act of: June 3.0, 1864, which reads: "On all manufactures 'of steel, or of wbich steel shall be a component part not otherwise provided for,

LLOYD 'V.M'WILLIAHS.
I . ' .

A.'

263

(

,

applies only to,non"enumerated articles. Tbesegoods are,ellumerated., ,They fall Ullder.,tbedescription Of enumeration of botb sections,aml, if eitber we:re absent, the description under the other would be Thus, if wele Dot for that provision of the act describing' manufactures of which steel is a component part,' there could be no difficulty in classifying them ullder that clausewbieh describes' maD1;1factures of which glass shall ,be acomWlI,ent material, 'and, if it were not for tbe provision describing ·manufactures of "',bicb glass shall be a comPQnent material,' there COll,ld be no difficulty in classifying, them under that clause which describes' marlUfacture,s of which is aCQlIlponent part.' "

five per cent." The importer urged that the duties were chargeable under the ninth section of the same act, which reads:, CIOn pebbles for spectacles, and all manufactures of glass, or of whicp glass shall be a component material not otherwise provided for, forty per cenL" The government at the trial insisted that spectacles came under the similitude clause; that they were a non-enumerated article equally resembling two enumerated articles,-those of which steel is a component part, and those of which g1a!3S is a component part; and that the import should therefore pay the highest rate of duty chargeable on either of the articles it resembles. ,The suprell1e court, throughMr. Justice HU1'lTdmy: "Weare not able to assent to this course of The

The court held that spectacles are embraced under the ,providing for all manufactures of glass or of which glass shall bea component .' part, and not under the similitude clause.' .. . . . . , In SmYthe v. Fiske, manufactures of silk, Of of w1iichsilk is the componentmaterial of chief value, ,not otherwise provided fOf, were held to be an enumeration, and so to cover eilk ties. Silk' ties were held to come under this clause, and not under the similitude clause, as a non.. enumerated article bearingS. resemblance to scarfs.' Upon thede'8ignation of goods by special description, see, also, Barb& v. Schell, 107,U.S. 617, 2 Sup. Ct. Rep. 301; Stuart v. Maxwell, 16 How. 150;F'i8k v. Arth:ur, 103 U. S. 431; Greenleafv. Goodrich, 101 U. S. 278. . . On behalf of the government, we are referred t,o Stuart v. ¥azwell, 16 How. 150; Arthur v. Fox, 108U. S. 125, 2 Sup. Ct. Rep. 371; Cohen v. Phelps,2 Sawy. 530; Bid,dle v. Hartranft, 29 Fed. Rep. 90; Mason v. Robertson,. 29 Fed. Rep. 684. , In Stuart v. Maxwell the goods were manufactures of linen and cotton. Section 3 of the act of 1846pi.'ovided that there should becollooted on"all goods, wares,and imported from foreign countries, and not specially' provided for in the act, aduty of twentylper cent. ad valorem." Sectionl1provides that, on manufactures composed wholly of cotton, 25 percent. advalmem should 'I;>e collected. The importerinsisted that' tope },lnder sectionS, as goods not specially provided for in' tlle, act. ,. 'rne government inSisted that they were controlled by section 20'otth'e i actof1842, which is the similitude clause, and that this section waSllohepealed by theapt,of 1846.. The cbtitt say: <ilf the of 1846 bas specially provided for nil:LnUfactull'lS of cotton, aM has at the'sameitime left info1'Ce a rule of lawwbich enacts that all manufacture$iof which cotton is a component part shall be deemed to bemanufhCt-

act

264 ures of cotton if notolherw,isepro'vided for, it: has in efiect provided for the f6r the principal thing, it has provided for all other things which the law declares to be the same. It is only upon this ground , that sheer andmanifestevasibns can be reached." In Arthur v; Fbx it was held that article, composed of cowhitir ul}d cotton, resembling and used for the saHie purposes as an enumerated article of goat's h,air and cotton, is liable to the same duty as the latter, under the similitude clause, and that it'was not dutiable under the provision covering "all other manufactures of cotton not otherwise provid'ed Jor." Chief Justice 'WAITE, speaking foOhecourt, says: If an article is found not in the tariff laws, then the first inquiry is Whether it bears a similitude either in material, qualitYI texture, Or use'to Which itniay be applied to any article enumerated as chargeable with duty. If'itdoes;il.l1d the similituae is substantial, then,l.n the language of the ,court in Stuart v. Maa:;well. BUp1'a, 'it is to be deemed the same, and to be charged accordingly.', In other words, though not specifically enumerated,. it is under the name of the article it mostresemoles. Ifnothing to which it bears the requisite similitude" then ,an inquiry is to be instituted as to its component materials, and a duty assessed at the highest rates 'chargeable on any' of the materials. Any othe1'c0nst1'uctioll would leave the law open to evasions, which, as was also said in s'tua'l't v. Maxwell, it was the object of this statnte, enacted more than forty years ago, ,and kept 1n.fo1'oo since,.to prevent. It " ' · '. / In Biddle .v. Ha,rtrarift aild ·v. Robertson the was distinctly presented to the court as proper constructiqn the words, "all and salts, ,by whatsoever na,me known, and' not specifically enuJ;nerated or .provided for in this act," ta,ken in connection withsElction 2499. The gqv,t\I;Ipnent contended in these cases that. il:1' the case of the importation of compound or salt, not specifically enum.erated in the, tariff .act, we must first turn to the similitude clause, and see if, any oiits provisions are applicable, before classifying it under the general description of all chemical compounds or salts; that the use of the words, "not specifically enumernted or provided for," in the chemical compound clause. means that it is provided for, if the similitude clause is applicable. On the other band, the importer claimed that the similitude only covers non-enumerated articles, and thnt the phrase, "all chemieal compounds or salts," constituted an enumeration. In Biddle v. Hartranft the importation was bichromate of soda, a non-enumerated chemical salt, and it bore a similitude to bichromate both of potash, an enumerated article. Judges McKENNAN and held that, inasmuch as bicbromateof soda bore a similitude to biohromate of potash, it was provided for in the similitude clause, and that the general provision subjecting aU salts not herein enumerated or provided for to a .specific duty was not applicable. In Mason v. Robertson the import was also bichromate of soda, and the plaintiff claimed that it should be assessed under the chemical compound clause at 25 per cent. ad valorem. The collector assessed the duty at three cents per pound under the similitude clause, tbat being the duty'on bichroml\.te of potash. Judge SHIPMA;N says: "The only question in tbis case is whether bichromate of soda is an enumerated article. The only enu-,

a

II

\

LLOYD

V.M 'WtLLIAMS.

265

meration is that stated in the statute, a 'chemical compound and salt.' A chemical compound enumerates nothing, anymore than the general term 'manufaqture.' A chemical salt is, speaking generally, and not with scientific precision, the combination of an acid and a base. A base is the union of a metal and oxygen. It is a most general term. I cannot think that, within the meaning of the statute, the term ,'chemical salt 'enume'rates the article of bichromate of soda."·. The compoupd jury thereupon,uooer the direction of the court,fendered a for the defendapt. It that, in the cases whe;re the chemicalcompourid clause has come before the {lourts for construction, it has ,been held not to constitutesuchan enumeration as to take an article· out from the operation odhe similitndeclanse, that the term, "chemicafcompourid or salt," is so general that it is scarcely less an enumeration than section 2513, which articlesmanufaetured, in whole or in part, assesses a certain duty on h(lrein"enJlmerated or provided for." . ' ', ' I thinkjupon consideration, though I was ,by no means. free from d,onbt that the view adopted by the courts in Biddle v. Ha'rtranft and,' M[J.SOn v. Robertson correct. Its¢ems to me to hold otherwise WGuldopen the doors to the evasions of·· the law commented upon in Stiw,rt v,. MaxweU and Arthur v. Fox· . Noruo I think this conclusion in conflict with Arthur v. or Smythe v. Fiske. The term s "all manufactures of glass or of which glass shall be a component material," 01' "all manufactures of steel or of which ,. steel shall bell. component part;" or "manufactures of silk or 0'£ which silk is the component of chief value," may be held to be an enumerationofarllcles by special description, because they cover only those articles made in whole or in part of a specific thing, and therefore there is little room for evasion of the revenue; whereas, the term ., chemical compound "is so broad and general in its character that, if construed to be an enumeration and so shut out the similitude clabse, it might result in much abuse. It is said that in the cases cited section 2499 was held to govern only where theimport bOre a similitude to the enumerated article, and that'it is now sought to apply another paragraph of the same clause, that relating to articles manufactured from two or more materials. It is manifest, however, that.if section 2499 can be invoked at all in cases of a non-enumerated chemical compound, all its pro"\l'isions should be examined. The reasoning of the court in Arthur v. Fox is to the effect that, if nothing is found to which the import bears the requisitesimilitude, then an inquiry is to be instituted as toits component and a duty assessed at the rates chargeable on any of the materials. The second position of the plaintiff, that alizarine assistant is dutiable under section 2513 as a manufactured article, is clearly untenable, from what has already been said. My opinion is, while admitting that the question is not free from difficulty, that judgment should. be for thedeferldant; and it is·so . , " ordered.,

is

Jl'EDE&AL REl'ORTER.
:

, lbnl)EN

, .j-,

ISELIN and

D. New York. June 28, 188il ,

. '.,

1.

I. 8.um-ILLEGAL FEES-SECTION 2636. REv. ST.

2980, REv. ST. Bectioll'2000, Rev. :St. U. S., provides that, where all.' importer is dissaUsanapp!-,afsement. he may forthwith give notice in writing to the tied collector, Who, on' receipt thereof, shall select one discreet and experienced merch{uit, fainiliarwith the character and value oftha goods in question, to be associated with one of the general appraisers. to examine and appraise themithe.collector, ,in cal!e t4ey disagree, to decide between them; and that such shaUbil' final. There is no statute declaring who shall pay the merChant appraiser, but article 472, Regulations Sect. Treas. 1883, d.irects · n19l'to deliver mel'ch!o'-pdise reappraised with,out payment of the fees of appraJser by the Importer, at the rate of five dollara , :M" (lier[l,;Held, that sucli'charge on the importer is an unlawful exaction, and that thli:expenses of reappraisement must be b.orne by the government. .FuliJAn Vi,.[6J'H'''.41J-CiJ, 3
RBVENbiit LAWS-REAPPRAJSEMENT-FEES-SEOTION

Section 2686, Rev. S,t. U. S., provides tMt'"everyomcer of the customs who demands'oneceive8 dny other or greater fee, compensa.tioll, or reward than is all.0.Weq,bY la:w.."j,fQr: pe.dorm.in.lB:. .... duty or service of him. by lawc, shall be Ifable to a penalty of for each offense recoverable to the use or the'pltriy aggrieved.' Held; this section il1""COnnection with sec· tions 11187/2981; 2982; in pari materia. that it is intended to b.p-plr only to ex· not contemplate mulcting a collector tor a deposit tortion, and does to. cover the fees ofa. merCijant'appraiser, pursuanttotb.e regulatIOn of the s8cretiny:of the treasury. " '. ., , " ,.,'

.

,200

Ale:tander P. Ketchwm. for. defendants in error. Hf/n:fY OJ Platt, Asst. U. S.Atty., for plaintiff in error.

J., " This action was" in the <ii,strict court to rea penalty tmd'er the provisiQns of section 2636, Rev. St. U. S. Rep. 416.. The statuUil is as follows: "Every officer of tbe customs who demands or any other or greater ,f!*'. ·.or reward than by law for performing any duty ,W' serrice requil'oo from him bylaw, shall be liableto a penalty of $200 for each olIense, recoverable to the. use of the partJ" 'aggrieved. " A plaintiffs; arid the defendant blings this writpf error to entered tpe verdict. It appeared upon the trial, that in July , 1885, th!'l plaint#fs imported certain merchlmdise intpthe port of New York, of which port the defeJ;ldant .was. cqlle<;tor, wh,ich was appraised for duty in advance of the invoice valualiion. .Being dissatisfied with the appraisement, the plaintiffs gave notjce. of such dissatisfaction.to the collector, and at the same time deposited with a clerk' in the.cashier's office at the custom-house the sum of $10 wherewith to pay a fee of the merchant appraiser on the reappraisement. The collector was not present when the $10 was. so dep()site<i, .but. by a regulation pf: the, secretary of the treasury, (article 472, Regulations 1883,) cqllectors were directed not to permit a delivery to itnporters without payment of compensaa,t, the of five dollars per diem, to the merchant appraiser; and, pur:mant. to this regulation, and in order to secure such payment, it
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COVel'

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