UNITED STATES V. BREWER.

343

lmclt certificate was made by the importer). the proof of identity whieh the statute provided for was nen'!' mad\', and Ow hag':<' in (j\l\':<.tion were not entitled to free entn. 'l'he deeision of the dt'('uit eoul't is · reversed.
L':"\ITED STATES v. BllE'VllR et aI.

(Circuit Court of Appeals, Second Circuit.
No. 53.

January 30, 1899.)

1.

CUSTOMS

Of' IDE:KTIFICATTON.

'Vhere bag-s of American manufal'ture. on being expol'tl'd to be returned. were marked for identification as required hy artiele 3:3H of the treasury regulations, but on'their attempted reimportation an examination of sample packages disclosed but 8 pel' cent. havin/!' the same marks, they were not entitled to entry under paragraph 4tm of the tariff act of October 1, 1800, on other proof that they were of AUl(!rican manufacture.
SA)[E-CLASSIFICATLON-DUTY OF IMPOH'I'ER TO SEPARATE FREE FROM DuTIABLE GOODS,

2.

It is the duty of an importer to make affirmative proof of a state of facts relieving his merchandise from duty to whieh it would otherwise .be and to segregate from the sanw class of goods such portions as are claimed to be free. He cannot require the otlicprs to separate frpp from dutiable goods indiscriminately minglt'd, and in such case duty should be assessed on all.

Appeal from the Circuit Court of the United States for the Southern District of York. This cause comes here upon appeal from a decision of the circuit eourt, Southern distrid of New York, rewrsing a d(·cision of the hoard of general appraisers which had aflit'med a decision of the collector of the port of Kew York touching the classification of certain merchandise for customs duties. D. Frank Lloyd, Asst. 1.:". S. Atty. Stephen G. Clarke, for appellees. Before WALLACE, and SHIPMAN, Circuit .Judges. PER CURIAM. The articles imported were 50,000 flour bags, which the appellees contend were duty free under paragraph 4H3 of the tariff act of Odober 1, 1890, as "bags of American manufacture." The proviilions of the statute and treasury regulations will be found recited in our opinion in U. S. v. Brewer (filed to-day) !l2 Fed. 841. 'rhe various docunwnts required by the treasury regulations were presented to the collector. It appears from the findings of the board of general appraisers that:
"To establish the identity required by law a list of brandfl was furnished by the importer, with the number of bags bearing eac-h brand exported by four several vessels, to wit: By the Durham City, 19,a15; by the Bo.'lton City, 12,524; by the Charlotte, IS,IOO; and by the Ariadne, lil,-thus accurately acc-ounting for the whole importation of 50,000 bags." "But when the contents of one bale came to be examined, the bale was found to contain only thirteen brands which were ineluded in tlw invoice list, and 152 brands which were nowhere on the invoiee list. In other words, there was prima facie identification of S per cent. of the contents of this bale, and conclusive disproof of the identity of 92 per cent. thereof."

344

,92 FEDERAL REPORTER.

The circuit court held that the bags were entitled to free entry, because thev were in fact of American manufacture. 'Ve are unable to concur iii this decision, because the importers failed to prove that fact in the way prescribed by the treasury regulations. Article 336 of those regulations prescribes that:

"Such bags * * * exported to be returned should, when practicable, be marked or numbered, in order that they may be identified on their return; and the marks or numbers should appear on the shipper's manifest upon which they are exported."

It does not appear that such marking or numbering was impracticable; on the contrary, the bags were marked and numbered, but neither marks nor numbers conformed to the marks and numbers on the export certificate. No question was raised in the protest that the examination was not made of a sufficient number of bales. The opinion of the board most clearly explains the necessity of an identification of such merchandise by marks and numbers, and we entirely concur with their conclusion that:
It is "the duty of the importer to make affirmative proof of a state of faets relieving his merchandise from duty to which it would otherwise be subjected, and that he should segregate from the same class of goods suell portions as are claimed to be free. He does not perform his duty by upon the handS of the examining officers importations enormous in bulk all,l number, containing goods that are free and dutiable indiscriminately ming']!',] together, and requiring an army of officials to separate them. If segreg:lt,',l. the appraiser's subordinates could make such an inspection as is contemplatell by law to verify the declarations made on entry; and the law does not ('0][template the individual handling of the countless millions of artieles of imported merchandise. Such a method of administration, if made necessary. would require the expenditure of the revenue in the effort to collect it, 01' would entail unendurable and obstructive delays in the management of the public business."

We do not find in U. S. v. Ranlett, 19 Sup. Ct. 114, any reason for disagreeing with the conclusion of the board that, upon the examination, the collector was warranted in classifying the entire importation as liable to duty; and the record does not furnish sufficient evidence on which to make any division into free and dutiable bags. The decision of the circuit court is reversed.

LEOVY v. UNITED STATES. (Circuit Court of Appeals, l!'ifth Circuit. No. 745.
1. N AVTGABLE W ATERS-OBSTRUCTTON- PROSECUTTON-EVTDENCE. In a prosecution for the erection of a dam in a navigable stream without consent of the secretary of war, prohibited by 27 Stat. 110, c. 158, § 3, a resolution of state levee commissioners within the district in which the dam was built, approving defendant's action, passed after indictment found, was irrelevant.
2.

SAME-QUESTION FOR .JURY.

February 28, 1899.)

Where evidence of the character of a stream is conflicting, whether it is a navigable stream, within 27 Stat. 110, c. 158, § 3, prohibiting the erection of any dam, etc., in navigable streams of the United States, is a question of law and fact, for the jury.