228

I'EDERAL REPORTER,

vol. 49.

in the trade, noW' sometimes: called "crayons. This, higher duty is laid upon these specific things pa,rticularly described. The nature of them is not changed, and they none the less remain tl;ll:lSe speQific things by being sometimes, or even generally. called sqmething else. If these are wood pencils,fiUed with crayon material., they are none, the less pencils of wood filled, and dutiable as such. This is in accordance with the cases of Arthur v. Lahey, 96,U. S. 112; De Forest v.Lawrence, 13 How. 274; Maillard v.Lawrence, 16, How. 261; Robertscm v. Perkirl8, 129 U. S. ,233, 9 Slip. Ot. Rep. 279; and Robertson v. Glende:n,ning, 132 U. S. 158, 10 Sup. Ct. Rep. 44. ,In each of these cases ther,e was a specific, description which left no ropm for trade pames. ,. They decide that where an aot ofcqngresslays right qold of a thing, anq says that that particular thing shall have a duty upon it thus and so, whep it is that thing the duty cannot be got rid of by calling it something else, or giving it some other name. Looking at this evidence carefully I it does not appear to me clear they have got to calling thesetl;lings so universally "crayons " that we can say, as matter 'of fact, that the trade name is "crayon," they are known as "pencils." Much less were they known as "crllyons" in 1883, at the passage of this act. As they are filled with crayon material, there is some proprietyin using the name "crayonj" but)f they are of wood, and filled, with that Qr other material, they would still be pencils of wood.., although thew9Qd,with\lut any material, would pot be a pencil. The decision of the'l;>oard of United States general appraisers is affirmed.

In re BLUMLUN et al,

(Ow-cuit

.....

'

,

D. Ne'!VYork. 'Janu8t;Y .'?,

'

'

"

OUSTOMS DUTIES":""TARIlI'll'OF 1883-CLA.ssrirr61TIoN-SuMA'1:rt.&. LEAF TOBACCO. UnstemIileli'Sumatra leaf, tobacco OODsistell of '37 'bales, compOsed, as to marks , and nUlllbers, of,t.4ree lots,tb.e tQ1:J,,"ccobei,ng in t'be manner in \\j,hich weighed by the Umted welg-her upon arrIval; Buma.tra tObacco IS one bale in ten being sent to'the appraiser's' stOres for examination,'and being there examined,by the United, Sta1jes, examiner by opening eaoh of the sample bales in the usual manner employed ihIIiaking such examination!! in the tObacco trade, and ten haudsbeing withdrawn 'froID, each sample by the examiner" ,and found w'cOWli!lte,ntirely of leaves suitable in size and fineness of texture for cigar wrappers; and the h'a11ds being the and the leaves couIit;ed, and the propOr1lionof hatl.dil'ctmtammg lea.vesrequlrmg more ,than' 100 to weigh a pound, and thaH +pO Fo, the P,ound; being, ascertained and separated; alld 'the same' proportIons b-eingcaloulated upon the sample bale and upon the lot represented by such sample bale;, such proportion of 20 per cent. of the ,tobacco found to be. of consisting, .in thl\case of tlle leavesl'eqoiring mO're tbari'l00'tQ weIgh a 'pound, and 80 pill' cent. ofleaves less than 100 to the pound; in the second lot, of 18 bales, all of the hands being found to contain leaves requiring less than 100 to the pound; in the third lot, of 9 bales,60 per cent,. contain lea,ves requiring more than 100 to the ',pon,nd, a n d40,per,cent;oontli,i,nm g le, less 'llhan ,100 t,o :th,e P,ound; and the ,duty being thereupon the at the rate of 75 , cents per pound upon the pro!tOi'tion contal/nng leaves reqUlt'mg.lllore than 100 to the pound and 35 cenU!t)er poulld upon"the proportion consisting, of leaves less than 100 th,e .pound,: that ,collector, in

IN RE BLUMLEIN.

229

lar and proper. but that, the result of his examination showing that in no distin-

ascertainment 'of the character, size, fineness, and weight of the to bacce were regU-

guishable mass of the tobacco was there 85 percent. of the requisite size and of the necessary fineness of texture, and of which more than 100 leaves were required to weigh a pound, none of the tobacco was dutiable at 75 cents per pound under ScheduleF,paragraph 246, Tariff Ind. (New,) of the tariff act of March 3,1883, but that.the whole 81 bales were dutiable only at 35 dents per pound, under paragraph 247. Taritf Ind. (New,) of the same schedule and taritf act.

At Law. Application by the importers, Blumlein & Co., under the provisions of section 15 of the act of congress of June 10,1890, entitled "An act to simplify-the laws in relation to the collection of the revenues," for areview by the United States circuit court of the decision of the board of United States· general appraisers at the port of New York, affirming the decision of the collector in the classification for dutv of certain unstemmed Sumatra leaf tobacco, entered at said port by the above-named importers on June 30, 1890. The importers procured the return of the board of United States general appraisers to be filed in the circuit court, . under the provisions of the above-cited act of June 10, 1890, and obtainedfrom the court an order referring the matter to one of said board of United States general appraisers, as an officer of the court, to take further evidence· therein. Upon this reference voluminous testimony was produced on behalf of the importers, and also on behalf of the collector and the government. The .testimony so taken showed that the merchandise consisted of Sumatra leaf tobacco, unstemmed, packed in the usual and ordinary manner, in 37 bales, which were divided on the invoice, as to' tnarks and numbers, in310ts,-the first lot containing 10 .bales, the second 18 bales, and the third 9 bales; that upon the arrival .of the merchandise it was weighed by the United States weigher, whb made his return of the gross weight, of the tare', and ·of the net weight' of the aggregate tobacco, and also of eaeh bale thereof; that the co11ector designated and caused to be sent to the appraiser's stores for examina- · tion 1 baJe from the first lot of 10. 2 bales from the second lot of 18" and 1 bale from the third lot of 9, making 4 bales out of the importAtion of 37 bales; that these 4 sample bales were opened by the United States examiner at the appraiser's stores by cutting the covering of the bales, and opening the contehts, in the manner usually emplayed in ex'· aminations made in the trade dealing in a like class of tobacco; that from each sample bale 10 hands of the tobacco were withdrawn by the examiner, taking the handS indiscriminately from the different parts of the bale; that the examiner carefully examined the leaves of the tobacco in each hand so withdrawn, and determined that all the tobacco was of the requisite size and necessary fineness of texture to be suitable for wrappers; that each hand was weighed by the examiner, and the leaves in each hand counted; that from a table prepared by the treasury department, and issued to the examiners for their use, the number of leaves weighing over 100 to the pound was ascertained, and, in the case of the fiJ,'st lot of 9 bales, 8 hands were found to contain leaves running less than 100 to the pound, and were consequently placed under a column as du,tiableat 35 cents per pound, under the provisions of Sched;, ule Tariff Ind. (New,) of the tariff act ()f.March' a.,

230

FEDERAL

vol. 49.

1883, and 2· hands were ,found to oontain'leaves requiring more than 100 to the poupd, and were placed ina 75-dent column, as bdng of the tobacco dutiable' at that tate per< pound , under paragraph 246, Tariff lnd. ,) ofsaidschedule and tariff a<;t,the proportion being, therefore, 20 per oent. of tM lot dutiable at 75 cents per pound, and 80 per cent. dutiable at 35 cents per pound; that hl the' second lot of 18 bales all of the hands drawn as samples were found to contain leaves requiring.less than 100 to the pound, and that whole l<,lt was consequently returned s,s dutiable at 35 cents per pound; that in the third lot of 9 balelh out of the JO hands drawn from san1ple bale, 6 of such hands contained leaves requiring more than 100 to weigh a pound, and. were returned as dutiable at 75 cents per Dound,- and 4 hands contained leaves weighing less than 100 to the pound, and were returned as dutiable at 35 cents per pound, namely, 60 per cent. of the lot at 75 cents, and 40 percent. s,t35 cents, per pound; ths,t the entire invoice was liquidated at these same proportions in the lots, respectively, and the duty assessed accordingly by the collector. The importers, in their protest, which consisted of 24 different alternative allegations of alleged error in the classification· of the merchandise by the collector. took the ground, among other things, that the tobacco was not of the requisite size and of the necessary fineness and necessary weight to bring it within the 75-cent of the tariff act; that the examination was illegal, and contrary to law; that the tobacco was put up in the usual manner, and that any attempt to separate the leaves as they exist in the hands for the purpose of classification wn.s illegal, and contrary to law; that the band should be taken as the unit of qUAntity; that the bale should be taken as the unit of quantity; that the invoice. . should be taken as the .unit of quantity; that the examination of only 10 hands of a bale was. not in compliance with the requirements of sec. tions 2901, 2939, Rev.S.t. U. 8.; that the regulations of the secretary of the treasury with respect to the classification of such leaf tobacco had been complied with; that the leaf tobacco in question, if found to be uniform in its putting up and packing, so as to constitute but one kind orline of tobacco, if 85 cent. of it was not of the requisite size and of the fineness and of the weight specified in paragraph 246 of the tariff act of March 3, 1883, then the whole lot was dutiable at only 35 cents per pound, under paragraph 247 of said act. In behalf of the government the testimony of trade witnesses was produced on the reference above mentioned, who testified that Sumatra leaf tobacco at the time of the passage of the tariff act of March 3, 1883, was examined in the trade, upon purchases and sales thereof, by opening one bale in ten, and sometimes one bale in four or five, withdrawing from the sample bale from four to ten hands, in the same manner as was done in the present case; and that it was never customary in the trade to draw more than ten hands from a sample bale, as the withdrawing of more would tend to destroy the bale, or materially injure it as an original package. On the trial in the circuit court, after the reading of the testimony as above, counsel for the importers argued against the regularity of all the proceedings by the collector and his subordinates, claiming that the ex-

.

IN lUll BLUMLEIN.

231

amination was not a proper or sufficient one; that the character and weight of the tobacco could not be ascertained in the manner pursued by the government officers, and that it was the duty of the United States weighers to weigh the tobacco in the course of such examination when it became necessary to ascertain the weight of leaves weighing more or less than 100 to the pound; and that the United States weighers, not having officiated in weighing the leaves upon such examination, vitiated the result obtained by the examiner. In behalf of the collector and the government, it was argued by the the statute in the case of this merUnited States district attorney chandise only required a practical and business-like examination of the tobacco; that nothing in the law could be construed \0 require such examination as would seriously injure or perhaps destroy some part of the importers' merchandise; that the examination of no more than one bale in ten was required by law or by the treasury regulations; that such examination had been conducted, as was shown by uncontradicted evidence, in accordance with the usual proceedings in cases of examination of Sumatra leaf tobacco in the trade and commerce of this country at the time of the passage of the tariff act, and that such examination as' made by the government officers was entirely fair and just; (citing Sampson v. Peatke, 20 How. 571;) that the examiner having determined that all of the tobacco in the ten hands withdrawn by him from each sample bale was of the requisite size and fineness suitable fotwrappers, (which finding was uncontradicted by evidence,) and having 'ascertained the proportion of the hands so examined in which the leaves weighed over 100 to the pound, and the proportion in which the leaves wei@;hed less, and having determined and set apart in his examination those hands containin@; the light-leaved tobacco from the hands containing the heavy-leaved tobacco, was a division of the hands, and consequently of the sample bale, and of the whold lot represented by that bale, into two distinguishable quantities; that such division, so made, constituted the two masses of the tobacco as contained in each lot, and that such divisions were as separable and distinct for the purpol:les of classification as were the two kinds of tobacco separated in the bales in the case of Falk v. Robert8O'n, decided in the supreme court of the United States, as reported in 137 U. S. 225, 11 Sup. Ct. Rep. 41; and that each of such divisions was the unit upon which the 75-cent rate should be computed; the bale, as decided, not being the unit. In the Falk Chse, 8Upra, it was further argued that the United States weighers had nothing to do with weighing any portion of the merchandise for the purpose of its classification for duty; the weight of the tobacco upon entry having been determined by the United States weighers, as shown by the return in this case. MctrrioU v. Brune, 9 How. 634. The United States district attorney also cited Rev. St. U. S. §§ 2882, 2890; Treas. Dept. llilg. 1884, ans. 1455-1470,'inol. Charles OUrU; (Wm. Wickham Smith, of counsel,) for importers. Edward MitcheU,U. S. Atty., and Jama T. Van RmI88elaer, Asst. U. B.:Atty., for the United States.

232.

FEDER>\L

v()l. 49.

WHEELER, District Judge. In the.matter ofthe qppeal of Dlumlein & Co. as to the duty on leaf tobacco. Schedule F of the act of 1883 provided that-,"Leaf tobacco, of which eighty-five per cent. is of the requisite size and of the necessary fineness of. texture to be suitable for wrappers. and of which more tlJan onehnndred leaves are required to weigh a pound,,......if not seventy-five cents per pound; if stemmed, one dollar per pound." Here was a lot of leaf tobacco in bales, packed in the usual way, as tobacco is usually packed, all of itarf the requisite and necessary fipeness of texture to IJe suitable for wrappers, and enou,gh of it of the requisite lightness.to make 20 per cent. of it light enough to take more than 100 leaves to weigh a pound, and 60 per cent. of parts of it light enough to take over 100 leaves to weigh a pound. The bales were of,utlifQrPJ,quality, and this percentagewa& made1:>Y sample of 10 hands, sample bales of more than 1 in 10, and weighing it. The officers ascertained this percentage, .it seems to me, in the proper way· It is said that it ought to have been weighed by a United Statea .weigher, but I do not think so. When it is getting at the clas·sification.of the goods, I do not tpink that is necessary. I do not see but that they proceeded reguhu;ly, in ascertaining what these goods were. But whentbey got it done, (it wasunstemmed,) they put 75 cents per pound on as many. pQunds of those bales in which there was tobacco of the requi£:lite lightness io one case as 20 per cent. would be of the whole, and in the, other case all 60 per cent. would be of the whole. They did not assess 75 cents ,a pound 00, any particular mass or quantity qf tobacco, but they, found in ,one'mass 20 per cent. of the requisite lightness mingled in the usual yvay with the rest, ano in the other mass 60 per cent. of the requisite lightness so mingled; and then co.. 'ptlted the number of pounds thare w()uld be of the reqnisite lightness at those rates per cent., and assessed., t4e duty on tl1at number of pounds, 8S an· undivided part ;ofthe whole; and exacted that duty, was paid. If that is right, the Clecision is right; .if not, not. Now this cootemplatesthat in this tobacco there will be some that is heavy aod $ome that is light; it will not be of uniform weight. It is nO,t to, be sorted Qut, and have all the tobacco that is light enough to take 100,leavel! ormore'to make apound in one package, and all the in another package, for this purpose. The two kinds are to be put in togl:ltber i11- the usual way I and that is slclOwn by the fact that it says, if th<?l'6 is 85 cent. of the light kind in wi,th the other kind,ifit comeS'up to that,--then the duty shall be 75 cents per pound; which would not be the provision at all if it was to be classified the other way, and all that was of the requisite lightness picked out. When tobacco is put up for classification in a mass, they are to ascertain what per cent. there is in the mass which is of a uniform quaJjty-thatcomes up to this standard; and, if 85 per cent. ofit comes llP, then)t is to pay 75 cents a ppund if unstemmed, and' a dollar a pound if stemmed. The point wae: )low this tobaQQo was'to be rated. When: they established what they did, they established as to one lot, pack,edin the ordinary
>. , · . ·

IN ',RE BLUMLEIN.

233

way, that 20 per cent. of it was of requisite lightness. The result was that the tobacco did not come up to 85 per cent., and was assessable only at 35 cents per pound. It was not of the quality that should pay 75 cents per pound; it did not come up to that. The collector assessed 75 cents per pound on this tobacco, which was in with that assessable at 35 cents per that is, not 75 cents per pound on the whole mass, but 75 cents per pound on 20 per cent. of the whole mass, undistinguished from the rest. If that was the way this was to be done, this Jaw ought to read, "seventy-five cents on as many pounds of the whole as the per cent. of tobacco of the requisite lightness makes;" which obviously is not the meaning of the act. It not contemplate that the tobabCo was to be assessed in that way, but the mass of tobacco of uniform kind was to. be looked at, and, if the per cent. came up to 85, then it was to pay the higher rate; if not, the lower rate. So none of this tobacco came up to the higher rate. The highest was 60 per cent., instead of 85, and Ithink.noqe ofit was assessable beiyond 35 cents a pound. case of Falk v; Ct. Rep. 41, which I Med, seems to be relied upon; but there, at the invitation of the customs cers, was packed into a ,bale a separll.tl) mass of tobacco of the requisitit fineness and lightness. That waS done for the purpoSe of bringing the bale down below 85 per cent. The p'oint was whether that I thought at first it was; I thought the bale was the unit. In thinking it over afterwards, I thought not. It was a mass of tobacco packed to be of the same grade as usually packed, and made part of a bale, distinguishable by itself, of the requisite fineness and lightness, and that was to be assessed accordingly. I so decided it, and the supreme court said that was right, not because there was to be found in there leaves of the lightness, but because in some distinguishable mass there was tobacco of the requisite lightness. I think that was attempted tl> be followed here, but mistakenly, because here are only leaves packed in just l1B tobacco is packed ordinarily,-some of the requisite lightnessand Borne not,-but not 85 per cent. of the requisite lightness in the mass; therefore I think that the decision of the appraisers should be reversed.

I'EDEBAL BEPOnTEB ,vpL

49

BOBY 11.

Collector.

(OWCutt Court, D. Connecticut. January 27,1892.)
1.

CUSTOMS DUTlBB__ToBAOCO

Under Aot Congo Maroh' 's, 1888, § 6. (22 St. p. 503,) imposing a duty of'/'5 cents per pound upon,unstemmed leaf tobacco of which 85 per cent. is suitable for wrappers, and 35 cents on ali otber,unstemmed leaf tobacco, but onll rate of. duty is payable u;\l0n tbewhole unit of quantity, whatever that may be; and whether that rate is '1'6 01:' 115 cents depends upon whether theperoentage of wrappers in the unit is greater Qr 85 per ". , .
·

011' QUALITY.

So

B.u!_UNJ'l'.OIl'QUANTITY..

The unit of quantity under the statute ia'the separated quantity of unstemmed ieaf ,tobacoo 'of a uniform grade;a»d where the, entry consists ofmanl bales of the same hGnestly and flUrly packed, the rate of duty is determmed byascertaining Whether the peroen tage of wrappers in the whole lot is greater or less than 85 .per cent-thereof· . RobertBon,'U:Sup. Ot. Rep. 'It 187 U;I:l. 225, distingUIShed. · I, " '

At Law., ,.Action by Chal'1esSoby Charlea Hubbard, as collector to rtXloYflT d,uties paid under prQteston certain imported J udgmeptfor , , 'Stanton and Williwln Stanley, f6r S. Diilt. Atty., defendant. ,
is an, action at'lllow by Charles Soby to reCOVer Jromthe of customs fQr the port of Hartford the du9laimed to have been illegally exacted, and which were ties, paid under pJ'otest, upon a portionef an importation of Sumatra tobacco into saiu port: from Amsterdam, in June, 1890. The parties, by written stipulation in writing" and duly sigp.ed, waived a trial by jury, the cause was trie4 by· the court, and the.foll,owing. facts are found to have been proved and to be tr:ue: ,Theplaintift', CharleaSoby, a citizen and resident of of & Bon 100 bales, of Sumatra unstemroed leaf t09acCO, to be .Qsed for wrappers. The whole number of New York from Holland in June, 1890, immediately transported, without appraisement, to the port of Hartford. The invoice consisted of two different plantation lots,one of 43 bales from the "Lankat" plantation, and one of 57 bales from the "Senembah" plantation. The hands of tobacco had been properly packed in bales in the usual way in Sumatra, without fraud, or attempt to deceive or to evade the customs laws of this country, and had not been opened or repacked in Holland, and were all intended for wrappers. The tobacco in each separate lot was of uniform quality. Upon the entry of the goods in Hartford, the two plantation lots were separately examined, weighed, and appraised by the appraiser. Five bales of the Lankat lot and six bales of the Senembah lot were set apart, cut open, and ten hands were drawn from different parts of each bale. The hands from each bale were separately weighed, the weights were recorded, the leaves in each hand were separately counted, and the numbers were recorded.