IN RE CHICHESTER.
281
In fe CHIcHEsTER. (Circu,t Oourt, W. D. Texas. November 19,'1891.) CI1STOMS DUTIEs-BoARD OF GENERAL
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as to the rate and amount of duties on imported merchandise, extends only to merinvoiced aJ;ld. appraised; and they hElve chandise lawfully entered and no jurisdiction, in the case of goods seized lind libeled for forfeiture in the fedElr'al courts. to review the collector's determinEltion of duty to be paid thereon, aa joe-' quired by Rev, St. § 988, in order to l!ecure delivery of such goods to the Claimant.
10, '1890, relating to the collection of revenue, to review the decision of the collector
Tbe jurisdiction conferred on the boal,"d of general appraisers by Act Cong. June
At Law. On appeal from the decision of the Qoard of general .'i::' . On January 13, 1891. the collector of customs for the collection dIStrict of Saluria seized at Eagle Pass, in the state of Texas, certain,five car-Ioada of lead and silver ores, consigned to ]J. H. Chichester, asforfeited to the United States, by reason of certain alleged attempted false and fraudulent entries of said ores as imported goods. Thereaffur,'on the 31st of January following, the district attorney for the western district of Texas libeled the said ores in the district court for the western dishirit of Texas,claiming their condemnation and forfeiture to the use of ,the United States by reason of alleged attempted false entry and invoices; . to-wit: "Fil'st. He did attempt to make, and did make, a false and fraudulent try of said imported goods, wares, and merchaIidlS'e'under a certain false invoice, then and there and failing to comply with theinstructiollS of the secretary of the treasury of the United States of America of date July 17. 1889,inthis, to-wit: He failed to make a declaration that the said goods, wares, and merchandise embraced no mixture of ores or from mines·. and thereby was guilty of a 'Yillful act of omissiOIl, by means whereof the United States shall.be deprived of the lawful duties'then and there accruing upon. the imported goods, wares. and merchan!lise afote.. said, and portions therepf; and all this he. the said E. H. Chichester, illegally did, with the intent to defraud the revenUe of the United States of ,AJ;Derlca. Second.· He. tile said E. II. Chichester, did then and there make, andattemot to make, a false and fraudulent entry of the goods, wares. and IiJer<lhandise aforesaid, haVing first willfully and intentionally commingled the aforesaid ores, the same then lind there being taken from different mines. so that said ores so commingled would ,assay in such a manner as to avo¥rthe force and effect of the Jaws of the United States in such cases made and provided for the collection of her duties. in this, to-wit: Had said received as a just lind proper entry by tbesaid collector of customs, then the United States would have been deprived of the lawful duties on said aforesaid ores, and a portion thereof, embraced and referred to in said invoice." Warrant being issued, and the said car-loads of lead and silver ores being taken. into the possession of the marshal,Chichester, consignee, applied to the court for leave to bond the said ores under section 938 of the ReviSed Statutes ofthe United Sbltes, and, asa prerequisit¢ to. bonding, applied to the collector of customs of the district to pay duties on .thesaid ores in like mannel'as if the same had been legaUq
2&2:
FEDERAL
nEPORTER, vol. 48.
entered. .The collector exacted as duties upon the said ores the sum of $2,427.60, which was paid by .the claimant, for which receipt was given as follows: . ·. FAss. TEXAS. "COLLEOTOR'S OFFIPE. February 21. 1891. "Receil;edof E. H. Chichester the of twenty-four hundred twentydollars. ($2.427.60.) being duties on 99.200 pounds of lrad seven and; ore. at one and one-half cents .per pound·. and on 64.640 pounds of lead contained.according to assay at port of entry. in 149,500 pounds of ore. at Itper.pound on the lead said ore I\saforesald; saie;l ores being same described in ,that certain cause numbered 57, on the docket of the U. 8. !listrict court for the western district of Texas at Sim Antonio. and styled The United States vs. 448.700 pounds of silver and lead ore. and libeled January 31. 18!H. Of the above sum the amount of 8972,.19 is paid under protest, as excessive. [Signed] "F; A. VAUGHAN. Collector Customs District of Saluria. Texas. , ';,', : ,", ' , ; "By C. W. HARTt1P, Special Deputy." , Presenting the to the court, accompanied with an by the district attotneyas to the appraised Value of the ores in question; ..consignee, Chichf;lster, obtained from the court an order for the delivery of the property on bond pending the suit. "The record further I3hows that at the time theconsigneepllid the duties on the said ores, as by the above, receipt, Bled a protest'\viththe collector, was in excess of the, amount of duties claiming' that the sum of to which the United States was, entitled according 'to law. He afterwards filed a more extenslve and elaborate protest, in which he "asks that /laid excessive. colle¢ted and paid under protest in order to replevy said ore,. and, further asks that this protest be /lubmitted to the bO,ard apprai$erl}," Upon protests the ease was submitted to the board of general appraisers, which board, on :the 14th of April, 1891, itendered the following decision: "ThiEl ofsilvel',andlead ore was seized b1thecollector on the that tbesbfppers ah4:consignees Were attempting to defraud the revby ,In ores fl'omseveral mines, S? mixed Blft'o give the ores 8 high cOlltept of silver,Bnd make the importatIOn dutiable, only on the lead pontalned; bisteac:l of· on its'gross weight as lead ore. The collector states 'that the case ,wliiJ reported to)he United states district who filed a 81, 1891, that the sllit is now pending in libel against the:ol'e on J the United Statesdistrict'cburt for the western district of Texas. The colthat, the · appellant; ha.ving sought to replevy by giving bQnd and paYlDg' me the' duties thereon, did, on the 21st day of February, 1891, payto Ine;· -,- - , the duties on said ore as asses!!edby me according to ,:Weights and' "ass,ay at til 18 port.' 'The colleetorhold8, inconelusion, that no jurlsdictionto hi!arand determine the appeal, but that the question' involved be determined according to the decision of th'e'lJnlted States district court.' It appears that duty to the am01'lntof$2.421i.60 was assessed upon the are. This sum was paid by the un4eJ.: ,pl:otest, ;as IW claimed tha1.of the was Qnimproper' ,been takep. i,t:J. determining .. A.s sechon 14 of ,the act of June 10'.,1890, gives JU'risdiction toitbeb'oardin eSSes wheretbe i)Dporter has duly expressed his dissatisfacttdh \\'ith the amount and rates of duties assessed, we see no;reason '.why we ahould beexcludtld :from a considemtionof the appeal now before
he
: iN us.
RE CHICBlISTER.
283
the qu('stionof the: forfeiture oUhe mercllBndise is in controversy a United States court. The question: for ourcoDsideratiqn.underthis protest. is the legality of the collector's metAod of l\l!Sessing quty,oD'twoJ:arore. weighing 99.200 pounds. samples frOID a portion of tbe ore containing a very low silver content, claiming that the portioh8 of the cat-loads ricbin silver had been mixedfodhe purpose of defraudin'g the accordance with the assay of the samples thus taken, duty was Hssess,ed upon the 99,200 pounds. at Ii cents '1\ pound. as ,a leHd ore. ,The collector states that. if the, ore was dutiable in its mixed state. the apPellant would be. entitled to recover., and silver ores are thus provided for in paragraph 199, Act Oct.!. 1890: ·Lead and lead dross. one and one-balf cents a pound: provided, that silver ore, and all other ores containing lead, shwU pay a duty of one and one-half cents a pound on the lead contairi'ed therein. 1 There is nothlDg in this proVision of the tariff. or in any other Wat we kno:w, pt, to warrant a discrimination against the importation of mixed ores. In, paragraph 383 pel)alties are prescribed for the importation of mixed wool, in section 11 the importation of obscene articles. etc., is prohilJited. But there ia 'no such limitation or prohibition in regard' to ores of, any kind. and' no such discrimination' can be laWfully made. except after further legislation by congress. The protest of the importer is sustained as to the amount of $l:S71.98.wbich we find from the report of the collector to have been unlawfully exacted." To review the qnestions of law and fact involved in this decision, the secretary of the treasury has applied to this court under section 15 of the customs act of June 10, 1890, upon the following assignment of errors: "(1) The said board erred in taking jurisdiction of said protest when the merchandise referred to therein was then libeled as forfeited to the United States for being entered in fraud of the revenue laws of the United States. (2) Tbe board of general appraisers erred in holding that an importer can mix lead ores with silver ores so as to give the ore a high content of silver, and after so doing import the whole amount of mixed ores as silver ore. (3), The board of general appraisers erred in holding that there is nothing in paragraph 199, Act Oct. 1. 1890, (Tariff Act.) or in any other act. warranting a discrimination against the importation of mixed ores. (4) The board of general appraisers erred in holding. in effect, that the acts of the consignee, as stated in the libel filed in cause No. 57, district court, western district of Texas. San Antonio division, and the proof of the govel'Dment thereon, did not operate as a fraud on tbe revenue of the United States. (5) Tlle'board of general appraisers erred in holding that the collector had exacted $871.98 in in excess of the amount legally due on said merchandise."
284
FEDERAL REPORTER,
vol. 48.
ores of different lIiines can be lawfulJycommingledbythe importer for tbe purpose of giVing 'the mixture created a high content'Mailver, and thus make the importation dutiable on. the lead contained instead of on its gross weight as thereby aV9iding the forpe and effect of the laws of the United states, ang redudng the revenue of the United States. The question before tbeboard of general appraisers was apparently as to the amount of duties exigible on certain aggregates of mixed ores, but the 'real question necessarily decided waS whether or not the importer bad the l'ight to so mix ores from different mines as to giy:e the ore a high content of silver,' aJ;id:thus make the importation dutiable only on th,eJ#ad' contained, instead·of on its gross weight as lead ore. The anomalyistbuspresented of the board of general appraisers taking jurisdiction ina cause pending in a court of the United States for a forleiture of g60ds, as it were, finally issues involved; for, in the under which the jurisdiction is clldmed, "their deCision,.or tbat of a majority of theIn, shall be final and conclusive upon all :peraoDs interested therein. And, the· record shall be transmitted to the proper collector, or person acting as such, who shall liqUidate the entry accordingly, except," etc. The question of jurisdiction thus be:lomes exceedingly important, for, if maintained, the jurisdiction of the courts in suits for forfeiture is clearly affected, if not decidedly curtailed. The. boardof general appraisers was elltablished by act of congress approved JUDe 10, 1890, entitled "An act to simplify the laws in relation to of the revenues.".26St. at Large, p. 131. The first eleven of the act provide {hernode and of entering imported goods for the payment and collection of revenue duties thereon t for ,the "entry, the invoice, the declaration, and the ascertainment of value. The twelfth section of the act provides for the appointment of appraisers: , ./' · '" , . "They shall be employed atsucb ports, within such territorial limits. astqe S cretaryof the treasury may from time to time prescribe. and are hereby.aqthqr.ized t6 exel'cisethe .powers· and 9uties devqlved upon them by this act. exercise. 'the of the secretary of the treasi\ry. sncbotb,er superVision over appraisements !lnd classifications, for duty. ,of ,4npoi"ted merchandise, as roay be needful to lawful and nuitorm'appraiseU!ents the several ports. Three of the general appraisers shall be onqiitjr as a,ooardof general appraisers daily at the port of Ne\v York. during the business hours prescribed by the secretary . . of the treasnry., * ,* *"
The thirteenth section provides for the revision of the reports of assistant appraisers as tovaluej the report of the apprllisers.aato value; the reappraisement by a general appraiser, if called for; and, in cas& gfclissatisfaction by the importer or by the government, fcir an appeal to the ,board,Qf three general appraisers, which shall be on duty at the port of New Yprk, or to aboard of three general appraisers who may be de$ignatedby the secretary of the trea$ury, which shall be on duty at that port or any other port; and the deCision of the board of general appraisers is made final and conclusive as to the dutiable value of such merchandise against all parties interested: therein.