484

04 FEDERAL· REPORTER.

of wire, in that drawn cold through a die, with an even 'diameter, and a smooth, bright surface. It is established by uncontradicted testimony that these articles have gone through the processes which are essential in the making of wire, and which are essential to fit them for the making of drills, and that theYllllve been cut into appropriate lengths; and it is abundantly esta'Qlished by the evidence of manufacturers, as well as dealers, that they are commercially included within the class of wires or wire, and are commonly known as "drill rods." Inasmuch as they are also steel rods for making drills,] and, therefore drill rods in fact, the decision of the board of general appraisers is reversed.

BEMPSTEAD et al. v. UNITED STA'!']J::5.

(Circuit Court, S. D. New No. 2,583.

May 11, l8OO.)

OuSTOHS DUTIES-REVIEW()P. ASSESSMENT-SUFFICIENCY OF 'PROTEST.

4. protest against the duty on an importation of glass onder paragraph 95 ot the' tariff act ot 1894, with 10 per cent. added, under piJ.'ragraph 97, on accoUnt of the glass being beveled,-the groUnd of objection stated being that the glass, which was described In the protest III cyl1llder anq crown glass, was only ,dutiable under paragraph 92".--is In!IlJ1ficlent to raise the question, on -review, whether the additional duty Importation to Under paragraph 97 was correctly imposed, conceding . J1ave been dutiable under paragraph 95, on the clalinthat It should have been: classified thereunder as "looking-glass plates."

AppelJ.I by the from a, decision of the board of general apprl!Jsers which sustained thecil;Lssification of the collector of customs of the importations in question. Henry W. Budd (Howard T. Walden, of counsel), for appellants. J. T. Van Rensselaer, Asst. U. S. Atty· . TOWNSEND, District Judge. The merchandise In question chiefly consists of cast polished plate glass, silvered, known all "French looking-glass plates, beveled," and was assessed for duty under the appropriate provisions of paragraph 95 of the tariff act of 1894, and an additiOnal duty of 10 per cent., under paragraph 97 of said act, as beveled. The importers protested against said assessment of duty as follows:
"Protest Is hereby made against your decision assessing duty at 10%, and specific rate, on cylinder and crown glass, polished or beveled, covered by entries below named. The ground of objection, under the tariff act passed by the 53d congress on or about August 13, 1894, and known as 'H. R. 4864,' is that said meh:handlse Is not dutiable at 10%,under paragraph 97, in addition to the specific rates prOVided tor under said paragraph 92, and is dutiable thereunder only at the appropriate rate according to size. I "0. G. Hempstead & Co'"

The petition for review, however, Is not based on the protest under paragraph 92, but on the claim that the merchandise should only have been assessed under paragraph 95 of said act, as "looking-glass plates." In other words, it is now claimed that the pro-

HEMPS1'£AD V. UNITED STA'1'ES.

485

test was not in fact on the ground that the merchandise was cylinder and glass, polis,hed, or was otherwise included under the provIsions of paragraph 92, nor on the ground that cast polished plate glass, silvered, as described in the invoices referred to in the protest, was not dutiable under paragraph 97, but on the ground that the merchandise was looking-glass plates, under paragraph 95, and was therefore not "cast polished plate glass, silvered and beveled," under paragraph 97. It appears that there is a class of German looking-glass plates, made of cylinder and crown glass, and commercially known as "looking-glass plates," :,;ome of which were included in this importation. It is not deal' that the original protest was not on the ground that as these glasses were cylinder and crown glass, commercially known as "looking-glass plates," they were included under paragraph 92, and were therefore not properly classified for duty under paragraph H7, which contains no provision for looking-glass plates. The pro" test under paragraph 92 was therefore insufficient to inform the collector of the protestants' position as to commercial designation under paragraph 95; and I the'refore think the protest is insufficient, as found by the board of general appraisers. In one of the protests, paragraph 92 is not referred to, but the claim is made that the articles are dutiable only at the appropriate rate according to size. Inasmuch, however, as the goods are described as cylindel' and crown glass, beveled and polished, I think this. protest was not sufficiently definite, within the rule. This decision is not upon thE' ground that the protest would necessarily have been insufficient as to the 10 per cent. additional duty under paragraph !J7 alone, but because the assertion that the glass was cylinder and crown glass, under paragraph 92, and therefore not dutiable under paragraph 97, raised an entirely different question as to such glass commercially known as "German looking-glass plates," under paragraph 92, from the question as to "cast polished plate glass or looking-glass plates," under paragraph 95. Counsel for the importers has requested the court to find whether the merchandise would have been included under paragraph !J7. provided the protest had been sufficient. But it does not seem advisable to pass on this point, because a part of the invoices consisted of German looking-glass plates, and the rest of cast polished plate glass, silvered; and, while the determination of this further question might have been different in the two cases, the counsel for the importers has in open court abandoned the contention as to the German lookingglass plates. The decision of the board of general appraisers is affirmed.

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UNITED STATEs: !v.HUrLSMANo' ,1

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CONSTITUTES

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.lI1¥ch letter, Or the abstraction of itS contepts,! after it has been so del1vreaddres!'ed to be but before It has been again 'depOS1'&!d in the maUns not an offense, under ReY. St. § 3892.

,in w.!iose Care it 'illa.ddressed, it.is no'longer in tlle' ,custody' of:,thlr United subjcelrt' to jurisdiction; alId, :the,qp\\niIlK and destruction of
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'been delivered by the ptistalauthorities to 'the' person

Thi,sw?san indictment undel'lIection3892, Rev. St. U. S. nQtgui1tY. :" '",',' ,;

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JIWY :hqvhagbeen impanl!led and sworn, counsel ,for defendant stated that they would a.gi·ce with the, Vnited Stlltes attorney that the in ,the case were as follows: ' A directed to :Miss H., "care Superintendent City Hosplta:1';:St.:nOUis; Mo.," wiJis'in due cOllrsllot mail received by'thri's\1perintendent, at otnce in the OitY''::ElospltaI.This'superintendent was authorized to recl!ive, ollpl.J;tlents f<ilr ultiroatell,el1'!"ery to them. MIss, H. had been the ,bospItal, when the'letter reaj;hed there, tl,nd' had, left her new' address' with the' s1'!perintendent. ,The; latier erased the address from the envelope,wr6te on it the new address of Miss' H., and delivered the letter, so readdressed, to the defendant; who was'S: messenger boy.in thebospltal servIce, street letter boX. Defendant took the with dh:eetlons to him to, put it, in money and, I'tamps wJ,lich were in it, and deletter, qpened it, stroyed the letter and envelope; of course,not !leposlting either in the letter '" 'i, " "',;, ' "" " ' Counsel for defendant, on tliis state' of' fa.cts, agreed'to by the district attorunder UnIted States law ney, submitted that there ;was no otl'ense Qr under ,the constitution; citing U. S. v. ,Salford, 66 Jred. 942, ,and U. S. v. Lee, 90' Fed. and cases thereIn referred to., , ' , ' The United 'States aftotney read opinion from the attorney general departineht, relying mainly'(\n case of U.S'. v. Hall, 98 U. for the S. 343; :in,support of the indictment ,and the prosecutjon.

E. A. 'ROzier, U. Geo.

s. 'Atty.

,," " , and Jos. P. Vastine, for

, , '

ADAMS, District Judge (orally). This is not a new question with me. I 'had occasion lately; while holding court in the Western district, toe'ltamine the law' very carefUlly. I then held that section 3$92, Re"V."St., did not, ,when properly construed, contemplate such a this, and,' if 'it did, it'was doubtful if the power of congress; under the constitution, would permit such legislation. CongreE!s has: full power, under the constitution, to regulate the carrying of the mail, and to protect all mail matter as ,long as it is in the custody of the postal authorities. When the postal authorities have fully discharged their dntiesjby delivery of the'letter to the person to whom or in whose care it was addressed, they have fully discharged their functions, and in my opinion have gone as far as congress has authorized them to go. Whatever offense the defendant has committed, if any, in this case, is one which may be cognizable under state law, but is not under the United States law. The jury will return a verdict of "Not guilty." That being done, the defendant will be discharged.
Verdict accordingly. Defefidant discharged.