776
vol. 37.
vjously made by any of the commissioners, or any authority to report to the collector given. It further appears that Commissioner Stephenson. after the report had been made, did examine carefully into the condition of these 21 persons; that he found them to be able-bodied, healthy, intelligent, and much above the average of immigrants ordinarily allowed to land; 'nearly all with friends city; some with considerable means; a Jew with only a little money in their pockets, but with baggage containing articles designed for tr.ade; and all of them entitled, upon admission; to the further sum of $10 each, which was in the hands of the being a prepayment of their return passage in case they should be refused It landing; and that, in his judgment, they were able to take care of themselves wi,thout becoming a public charge. Upon this testimony it is plain that the intention of the statute had not 1?een complied with at the time the report was made to the collector, and that the report was made by the secretary without authority. The question whether immigrants should be allowed to land, or be sent back, is one·that cannot be allowed to be determined except under the responsibility which the statute imposes. It must be either by the board of commissioners, or by some one of them, or by soine person whom the board of commissioners has authorized to pass finally upon the question. It is sometimes a matter of no small difficulty to adjust the claims of human· ity and justice ,to the faithful enforcement of the law, and to determine justly whether particular persons come within the prohibited classes. The commissioners, as appears from the evidence, have never devolved upon any subordinate the right to determine this question, or whether an adverse report shall be made to the collector. The report in this case must therefore be treated as a nullity; and as a sufficient examination appears to have been made by one of the commissioners to show that the persons ought not to be detained, and no further examination appearing to be needed or desired, they should be discharged, and allowed to land. In re Cummings, 32 Fed. Rep. 75; In re O'Sull'ivan, 31 Fed. Rep.
447.
ZUCKER & LEVETT CHEMICAL Co.
'II.
MAGONE, Collector.
(Oircuit Gourt, B. D. New York. January 31, 1889.)
1.. CUSTOMS
Where two provisions of the tariff act apply to an imported article. the first of which provisions is qualified by the phrase, "not otherwise provided for," while the'second contains no such qualifying phrase, the article is r.roperly dutiable under the second provision. and must be held to be therein 'oth· erwise provided for." so as to take it out of the ope.ration of the first provis'
DUTIES-CONSTRUCTION OF LAWS.
II. SAME-ARTICLES OF VARIOUS USES.
When an imported article is a "painters' color," and also 8 "polishing pow· der, " it is not necessary to show that its predominant use is as a polishing poWder, in. order to make it dutiable all such. It is sufficient if its use for .'that purpose is 8 substantial use.
ZUCKER 4: LEVETT CHEMICAL CO. tl.MAGONB. 'S. SAME-OXIDES OF I R O N . ,
777
Oxides of iron,which are in generaluse both as "colors" Ilnd as "polishing powders," are properly dut,iable under the provision in Schedule of the act of March S, 1883, for Ii polishing powders of every description, whatever name known;" and not undorthe provision of Schedule A. for colors and paints, including lakes, whether dry or mixed, or ground with water or oil, and not specially enumerated or provided for in t.hiA act." , ,
(Syllabu8 by the Court.)
At Law. This was an action against the collector of the port of New York, to recover duties alleged to have been exacted in excess of the lawful rate upon certain oxides of iron. The collector had assessed the duty at 25 per cent. under the provision in Schedule A of the act ,of March 3, 1883, for "colors." The importer claimed that the articles were properly dutiable at ,20 per cent., as "polishing powders," under a provision therefor in Schedule N of the same act. The proof showed that the articles were used, for both purposes. As to some of the importations it was shown that they were much more largely used as "colors" than as "polishing powders." Edward Hartley, 'for plaintiff. Stephen A., Walker, U. S. Atty., and W. Wickham Smith, ABBt. U. S. Atty., for defendant. ,LACOMBE, or., (after stating the facts as above.) It appears by stat:. ute (act of 1883) that congress has provided, in the chemical product schedule, for "colors and paints, including lakes, whether dry or mixed, or ground with water or oil, and not specially enumerated or provided for in this act, twenty-five per centum ad valorem." Inasmuch as the tariff act im:mediately thereafter proceeds to deal with bone-black, ocher, and umber, it might perhaps be supposed that congress intended to restrict the exception to that schedule; but they have not said so, and to put that int,rpretation upon the act would be legislation, and not construction. Within the same tariff act, however, there is a provision for "polishing powders of every description, by whatever name known, including Frankfort black, and Berlin, Chinese, fig, and wash blue, twenty per centum ad valtYfem." It appears by the evidence here tlIat these goods, although painters' colors, and used as such, are also used as polishing powders, and are so used to a substantial extent. It is not necessary to show that their predominant use is as polishing powders, prbvided it appears that there is at least a substantial use of this kind of article for that particular purpoge. That being so, the acts, so far as these articles are concerned, should be interpreted so as to read, "colors and paints, except such as are used as polishing powders."By that 1 do not intend to imply that congress meant that each particular impottation should be followed out, and its use traced, and the question as to whether it should pay duty or not disposed of upon an examination into the function which that particular importation subserved; but that, if a particular class of articles was used, and was suitable for use, for the put. pose named at the time that the act was passed, that is sufficient. There
is no. evidence here tending to show that the state of affairs is any entnO'w froin what (Jongresll legislated. Therefore, as there has td 'show that..dierewasa substantial use of these >varieties of 00101'SAS poHsbiIlgpowders, I think .they are within language of which is itself an' e;cepti\)n from the eIghty-seventh I shall'therefore direct a verdict for the plaintiff.
. 1. CUST()MS,
Sut.LtVAN ' "
'D.
RbBiiJRTSON, Collector. . ')'
, "(OircuitOourt,:8; D. NWJ ¥ork. February 15,1889;) ,OF LA#s-ACT MARCH 8,'1888, SCHEDULE K. , '" TJle'provtsoas to goods'welghing ov>er four ounces per Sql are yard. at the , end of,the. 'paragraph to, women's and children's 'dress goods com, posed inpartQf W9010r worllted,in Schedule K ,of the act ,of March 8,1888, to such goods as are composed wholly of ":001 or worsted. '; Following Etlf.Bon v. Hart'rar.:tt, 24 Fed. Rep. 186. ', : '
9. SAME.
The phrase "goods of like description" in the ,provision of Schedule K of the ,",etof 8. 1888, fo:r "'\'fOIqen',s and children's dress goods, coat linings, Italian cloth'il;'and goods of Ute description, " etc., is not restricted in itsapplication to Italian cloths, but relates also to "women's and children's dress goods." Cr,OTHs. , " '
3., SAME-" THl'BET "
a'S "rhyb,llt" cloths or coatings, made of cotton warp and worsted 'filling. which .are·;eommercially known as "dress 'goods;" or· are' of df;lSCrlp,tion to :.dress s.;.. kn.own in trade,' lind, co.mm.erce·. are propat less than cents. per square ,Yard) 5 cents 'per sqtlltre'yard and'85 percent. ad valorem, under proviSIOn for women's and·children'8 dress goons,inSchedule K of.the'act of March 8, 1888. and not at 85 pound aIld49 per ,cent. ad valore.m, under tbe provision in the s.ame scb'edtile far"all manufactures of every description composed wbolly . or'in part'bfworsted, valued at above ao cents per pound." · .!
i, · 1
Atl,.aw., , ThisWl!os against,a former collector oft4e port of New York, to recover duties alleged to have been exacted. in excess of the lawful rate on certain "Thybet .puty had been assessed and exacted at per pound and 4()percent. ad valorem, under the provision in .Schedule K, act of March 3, .18l;l3, for "manufactures of every description ,COrnP01llld wholly or ill ,part of worsted, valued at over 80 cents per pound." 'rhe importer claimed. them to be dutiable at 5 cents per square yard aDd 35 per cent. ad valorem, under a provision in the same schedule fpr "women's and children.'& dress goods, coat linings, Italian clqths,and goods of like description, composed in part of worsted, valued at less tllll.n 20 cents per square yard." Evidence was adduced by plaintiff to .shoW that the .goods we.re commercially known as "dress goods," Of were like. suphgoodsj th.at they were;valued at less than 20 cents per square yardj that they were made 9f cotton warp, with worsted filllngjand that they ladies'alld children's dresses and jackets. Defendant gave evjdence showing that the goods weighed over four ounces to the yl\ord, ttq.d that they were largely usedpy tailors to make men's 'j< .'. . ' "'. ·
779 clothing, and were knowr{ by: as "coatings;" : At' the close of case, plaintiff's counsel 'forthe directioJ;lofa verdict in 4i8 favor, on the grc)uud that there was no conflict of'testim6ny as to the faet,that the goods imported were commercially known as "dress goods," or were of like description thereto. , Stephein G. Clarke, for plaintiff. . . '. Stephfen A. Walker, U. S. Atty., and W. W"wkham Smith, Asst. U. S. Atty., for defendant; , LACOMBE, J., (after I!tating the Jacts ds above.) As to'the proviso at the close of paragraph 365, it has been held in Ellison v. Hartranft, 24 Fed. Rep. 136,tba.t it applies solely to so much 'ilf the paragraph as, begins with· the words, "if composed wholly of wool." That opinion seems not to have been reviewed in the' supreme court.' It has been adhered. to shlce, and I shall follow it in this case. There remains, then, but one question for detetmination, -whether these goods are women's and children's dress goods, coat linings, Italian cloths, or goods of like description. As to the question whether or they are wotnen's and children's dress g()ods, there might perhap!l suf. ficient conflict of evidence to send the case tq the jUry, although even that is doubtful;; but that they are goods of like description to,*orilen'E! and childrEm'S dress goods,as those goods were known in trade and commerce In this country at the time that the act was passed, I think there is no conflict of testimony at all. The question, then,resolves itself into Do the words "goods of like description," in paragraph 365, qualify only "Italian cloths," or do they quality the entire preceding enumeration 'of. articles? Construing them according fo the very strictest rules of grammar, I suppose it should be held that they: qualify all that, had the other meaning been intended, 'the word" and" would properly have ,preceded the word "Italian," so that the clause should read: "Women's and children' dress goods, coat linings',and Italian cloths,ana' goods of like description." But of course these statutes are Iiotto be construed by any mere strict or critical interpretation according ,to 'gram;" matical'rules, and the conclusion to which I have arrived fortified by considering the phraseology of this statute in, connection with. 'prior act6. With regard to this general groupt,t goods, (which we'kn6w, not only from the evidence iu this case, but from our experience in other cases, is a species of fabric which women use for their dresses,) we find that in the act of 1857 congress undertook to describe them as "de]aines." In the act of there were a great many kinds of delaines, and that there were a great many other articles which might or lDight not be delaines, and whibhwere called all sorts of names in the trade, they provided for by the descriptiqn: "All delaines, delaines, barege delaines, composed wholly or in part of. worsted, ,wool, mohair, or goat's hair, and on all goods of simill1t description." The decision in... Yard C!ases,1 and"the universal
. lSchmiederv. Barney, 5 Sup.Cti Rep. '624, and cases there,cit:elL' ,'.' " ;
;,'
.",
,
780
I'EDERAL UPORTER,
'l.cceptance of the treasury department, as to the meaning of this particular phrase,. was that the words ",of similar description" there were not restricted to "barege delaines," but qualified "delaines" and "cashmere delailles" as well. So, when the phrase "of similar description" first came into this part of the tariff act, it was used to qualify all the articles that preceded it in the enumeration of this paragraph. The same thing appears in the act of 1862, when it was discovered that there was still another variety of delaines that congress apparently had not known of before, and to which the name "muslin" delaine was applied. UndoubtedIJ', when that name was inserted, the phrase" of similar description" qllalified "muslin" delaines just as ,much as it did "barege" delaines. In congress seems to have given1;1p all effort to describe these articles by a,lo11g list of names and the phrase "of similar description," and to have started out\Vith a new "women's and children's dress goods, composed wholly or in part 'pf wool,worsted, the hair of the alpaca,goat, or other animals," In however, it having been found that there were several articles:which COQld not he termed" women's and children's dress goods," such as Jtalian cloths, they altered the phraseology to read: "Women's and children's dress goods, and real and imitationItalian cloths." By 1883,:howerer, some other varieties of the turned up which it :was necessary .for them to enumerate; they therefore inserted the words "coat linings," so that the clause "Women's and children's dress goods, coat linings, Italian cloths,"(the words cloths" coveripg, of course, both the real and the imitation,) and then, in order to cover any new articles thai. should come, they added thewords "and goods of like description." So that the agraph now reads: "Women's an,d children's dress goods, coat linings, Italian cloths, and goods of like description." I see no reason why the phrase "goods of like description" should not be taken, in this last state of the section,as being of the same purport and intent as when it was first introduced into the tariff act, as qualifying all the articles which are enumerated in the clause preceding that phrase.. Under the evidence, seems to be no dispute, these goods, even if not as to which men's and children's dress goods," are "goods of like description" to them, or are" goods of like description" to "coat linings," or to" Italian cloths." For. that reason I shall direct a verdict for the plaintiff.
SWAYNE
HAGER, Oollector.
(Oircuit Oourt, N. D·. Oalifornia. February 25, 1889.)
t
CuSTOMS DUTIES-CLASSIFICATION-CHINESE SHOES.
Chinese shoes. consisting of ali upper part of cotton or silk and a Bole of ,.felt ·and leather, the felt being made from hair mixed with wool fiber, ami, paper. stilf.ened rice starch, are ta)(able, not under the act oU883, K, par. 14, lmposlng 40 cents per pound and 35 per cent. ad valorem on clothIng, ready-malie. and wearing apparel. not enumeJ;ated, composed wholly or in part of wool, alpaca, or other hair. made up by the tailor, seamstress,