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.
SOBY
v.
HUBBARD.
235
Aceordlng to the table furnished by the appraiser in New Ytlrk, and Rpproved by the treasury department, all hands of tobacco weighing from 3 to 3 1-32 ounces, and counting 18 leaves per hand, are equal to 100 leaves per pound. All those weighing from 3 2-32 ounces to 3 6-32 ounces, and counting 19 leaves to the hand, equal 100 leaves to the pound. No examination as to size or fineness of texture was made. The examination was made strictly in accordance with instructionBw hich were approved by the treasury department, and no complaint is made of its accuracy, or of the accuracy of its results. There were 7,401 pounds in the Lankat lot, upon which the appraiser reported: "Leaf tobacco, over 100 leaves per pound, 6,941 pounds, or 93 1-4 per cent., 75 cents per pound; and all other leaf tobacco 460 pounds, or 63-14 per cent., 35 cents per pound." There were 9,816 lJounds in the Senembah lot, upon which the appraiser reported: "Leaf tobacco, over 100 leaves per pound, 8,194 pounds, or 83 483-1009 per cent. of all, at 75 cents per pound. All other leaf tobacco, 1,622 pounds, or 16 5261009 per cent. of all, at 35 cents per pound." The Lnnkat lot was withdrawn for transportation to New York, where the duty was paid, so that no question arises in this case in regard to that lot. The collector returned on the warehouse entry: "Senembah (M. Y.) P. Fifty-seven bales wrapper tobacco. Over 100 leaves per lb., 8,194 pounds, at 75 cents; not over 100 leaves per Ib.,1,622 pounds, at 35 cents." A duty of 75 cents per pound was exacted, and paid under protest, upon 8,194 pounds, to obtain possession of said goods, and a duty of 35 cents per pound was exacted and paid upon 1,622 pounds. The plaintifl made due protest and appeal, and all the statutory prerequisites to the institution of a suit were duly complied with. No evidence was offered upon the trial to show that the Senembah tobacco had more or less than 85 per cent. of the requisite size and of the necessary fineness of texture to be suitable for wrappers. The plaintiff offered some evidence to show that some of the leaves were torn or broken, or worm-eaten, or rusty, but did not undertake to show thnt the percentage was more than 15 per cent. It was apparent that the percentage of inferior tobacco was quite sman, put whether it wns a trifle more or less than 15 per cent. did not appear. The torn and broken leaves became so in transportation and by rubbing against the outside of the bale. The questions upon the foregoing fncts are whether the statute was correctly construed, and whether the collector exacted the proper rate of duty. The tobacco was dutiable under section 6 of the Act of March 3, 1883, c. 121, (22 St. p. 503,) which is as follows: "Leaf tobal'co, of which pighty-five per cent. is of the requisitp size andaf thp npct'ssllry fineness of texture to be suitahle for wrappers, and of which more tllan one hundred leaves are required to weigh 3 pound, if not stpmmed, seventy-live cents per pound; if stemmed. one dollar per pound. All other tobacco in leaf, unmanuCactured, and not stemmed, thirty-live cents per pound." . . This statute received, during its life-time, various :constructions from the oflicerswhose duty it is to construe the customs revenue laws. It
286
FEDERAl,. Iu:PORTER,
vol. 49.
is not, clearly and there were serious practioal difficulties in the way of administeriqg it, under any construction. ,The '&1'St question is whether the provision in regard to weight ra. lates ·to, the 85. per cent. which is to be, of the requisite .size and texture, or wbether: the statute is to read, "Leaf tobacco, of which more than 6ne hUl,ldred leaves are required to weigh a pound." The latter construction never apparently been favorably considered by the treasury department or by the supreme court. The statute means that leaf tobacco, not stemmed, which has in its unit of quantity, wh;ttever that unit may be, 85 per, cent. of the requisite size, fineness, and weight, is dutiable at 75 c.ents per pound. , , The and most important question relates to the unit upon which 137 U. S. the 85: IWr cent, is to be oaloulated. In Falk v. SlW. Ct. Rep. 41, there were in each bale two separate classes or. tobaccQ, one" wrappers," and the other "fillers," and el1-ch class was the other by strips of paper or cloth, so that when the baJe, wa!J oPlilned one class was readily separable from The whol6.ofthe wrapper class was of the specified size, flne,ness, and weight. ,The supreme court held that in such case the unit was not the was the separated quantity of the wrapper leaf of the speci. The facts in this case are very different from those in the, F'aUv Que, but the idea which the court gives of the proper unit upon which calculation is to be made is also applicable to different sta.tes Qf £"ct. The unit is the separable and qt/antity of leaf topaCQOwrappers of substantially uniform grade. A whole invoice, fairly" packed, alld consisting of one grade or lot, might be a p,roper:ll}lit.., When the invoice consists of two or more Separate lots, of different grades, it cannot be the unit. When balf1s are falsely packed,of t4.e tob.acco is fraudulently with "filler" tobacco, or are, in one bale, the leaf tobacco in the statutory description in each bale. is, as in the Ralk; properly the unit. In this ,case there were two separate lots, aJl t4e .tobacco was for wrappers, the. lot in question was of uniform gra(1e, -ftn(1ltherewas no fraudulent admixture of inferior tobacco. I am: of that the proper unit was the quantity ,of to.bacco in the Senembah lot. The quantity a fraction over 83 per mint. of the weight. Whether it. ceJlltained more 01: less of the requisite and size is unknown. The instructions of the dep,lghnent apparently proceeded upon the theory that the size and fineness would correspond with the weight; and, so far as thetestinlony in the I am not prepared to say that this theory is not a corone.' The examinatipn of the appraiser having shown that 83 per cent, of the. quantity had .the statutory requisite as to weight, the col. lector. exacted a duty of 75 cents per pound upon that percentage of the entire numbel'of pounds', and a duty of 35 cents per pound upon the rest of the tobacco. I am of opinion that the statute imposed a duty of 7,5 9lilntfJ' per pound upon the whole quantity if, 85 per cunt. thereof uP to. the. statutory standard, and of 35 cents per p(;mnd if 85 per·
tI.HUBBARD.
,237
cent. was not reached. The rule under which the collector acted ignored the requirement of the statute in' regard to 85 per cent. The statute does not say that a duty of 75 cents is imposed upon so much of the unit of calculation as reaches the required standard, and a duty of 35 cents upon the residue; but it says that the higher rate is imposed upon the whole quantity if 85 per cent. thereof has the requisite scription. The statute did not contemplate that from aUDit of uniform grade the portion of tobacco which was of the required standard was to be sorted out, and considered as Qutiable at 75 cents. If this is the correct theory, if a quantity of tobacco of uniform grade and honestly packed contains only 10 per cent. of therequired standard, and 90 per cent. of inferior grade, the 10 per cent. is to pay 75 cents per pound. Again, if the unit happened to be 100 pounds, 8Gof which were of the requisite standard in the three particulars of size, fineness, and weight, the collector would, ill accordance with this rule, exact 75 cents per pound upon 86 pounds, and 35 cents per pound upon 14 pounds, whereas, the statute requires a duty of 75 cents upon the whole 100 Accordingly; the papers in case show that the collector was about to colle(}t upo):} 93 per cent. of the Lankat lot a duty of 75 cents per pOQnd, and a dtity'of 35 centti per pound lipon the remaining 7 per cent., whereas, if 93 per cent. conformed to the required stand" ' ard, the ,entire quaQtity was dutiable at the larger rate. Toe theory of the department is based upon those clauses in the decision in the Falkcase which say that the dntyof 75 cents per pound is il:np9sed upon any quantity of unstemmed leaf tobacco of the speCified quantity and weight. This language is to be read in the light of the peculiar facts -of thatcas8, lmd in connection with other language of the court which shows that em phasis was placed upon these facts. I do not think that it was the ,intention of the court to hold, where 'leaf tobacco, designed .and generally. suitable for wrappers, and of uniform grade, had been packed without fraud or false packing, that so much of the tobacco in the uniform lot as conformed to the without any 'reference to the 85 per cent. provision, was dutiable at 75 'cents per pound, and the residue, whether more'or less thim 15 per cent. ofthe -entire quantity, was dutiable at 35 cents per pound. Such a construction would create a new statute. The decision of Judge WHEELER, in the case entitled In '1'6 Blumlein, 49 Fed. Rep. 228, which waS recliritly tried in New York, accords with the views which I have expressed. . Let judgment, be entered for. the plaintiff for the sum of $3,277 and -costs, and let of, probable cause also beentered. i
/288
DDEBAL REPORTEB,
vol 49. ·
):' I
J:
'i'
In re J ,i!
.
(IXstr!ct OoUrt.B. D. lowa,E.1AFebruary 9, 1892.) a writ of right, will not issue as of course from the federal. 'courts, since Rev; st., U. S. § 755. prbvides' ,tbat, on application. it shall issue fortbwlth, "unless It appears from the petition itself that the party Is not entitled , ,", 'Federal courts will, Eroceed with groat' caution upon applications for writs of habeall corpus in beha f of a person imprisoJ;led under process of the state courts, and,when practicable, will investigate ,the questions raised before issuing the writ. , ' , FEDERAL COURTS TO STATE OtPIOllRS.
,
8.,
: ,Where a person has been convicted of \,!otatlng the prohibitory liquor law of Iowa ': "by a' statel::Ol1rt of general jurisdiction havlnl{ jUrisdiction of the person and the subjecWDtiltt<er and authority to' render the paJ;1'."loular judgment, suoh decision oannot be revi\lwedin the federal courts on an appllqatic.n for a writ of habeas corpus, allegigg ,that the sales 101' which the conviction was had were made in the original pau\l;a/res of but. also showing that the OQurt oharged the jury 10 striot accordance with the deoision of the United States supreme oourt in the original pacltageoase, (LetBy v.Har4tn, 10 Sup. at. ;Rep. 681,185 U. S. 100.) a person convicted of, crime In a state court the fed· eral 'clourts have no power to inquire whether the evldenoe wassumclent to support the terdio" and judgment. ' " """ ," '
REVIEWABLE-VIOLATION
STATE, LIQUOR LAWS.
.. SAMB"-QUEITION OF FA-CT. , ,OI11l<'lbelts corpus to,r",l.ease
, ' .,
'
I.
SAME-CONTEMPTS.,
All to a fed8J;al court for a writ.of 7utbeas Cnrp1tsto release a person lmprltWiied!by virtue of:aj'lldgment of a state oourt, balled upon a finding of con. to.be detel'mined by the Ilame applioable in the case of a judgment 0'0 the verdict of a lul'v.·· " , ORtGI1UL
In LetBy v.I!llrd'l71, W Sup'. Lt. Rep. 681"tbe:supreme court ,did not declare the Iowa prohibirory law void, eIther in. whole or in part, but merely restrioted its appiicatlon to property entirely within the jurisdiction of the state. In re Rahrer , 11 Sup;,C1l. &p.,8tlii, 140 U. S. fi68.foUowed. The paY-ment of the tax imposed upon tetailliquor dealers by the statutes of the United States U1 no wise entitles the dealer to protact.ion against a state prohibitory LAW.
P AOXAGE n
DEOISIONS.
f.
law..
'.
On,j\pplication for writo! HubeasOqrpU8. Liston McMillan, for· ' D. Roe, Emery, for · . ,I,
Writ denied.
J. Upon Jaliluary 23, 1892, the application of Kinsley Jordan f()rwritofhabe«8: corpuaWllS presented to this court. The applicatl<ll!. ;:with accOIilpanyblg, is voluminous.: In subtance, it alleges that restrninooQl"his ,liberty' by, the sheriff of Wapello county, Iowa, who detains petitioner by reason, as claimed, of certain writs of execution or mittimua, issued upon judgments rendered by the district and circuit courts of said Wapello county, a portion whereof were rendered 011 verdicts of guilty in criminal cases, and 'the remainder upon findings of said courts that petitioner was guilty of violated certain injunctions. All of said judgments contempts in are for violations of statutes of Iowa with reference to sale of intoxicating liquor. These judgments, as exhibited, with application, are seven in number, and may be summarized as follows: WOOJilON;