LOUISVILLE PUBLICWAREHOUS])
co.
V. COLLECTOR OF CUSTOMS.
561
excessive, the commissioner of internal revenue had full authority to require the withdrawal of the whisky, and the payment of the tax on the original quantity entered for deposit in the distillery warehouse. In the case of Thompson v.U. S., 12 Slip. Ct. Rep. 299, (decided January 11, 1892,) the supreme court say of section 3293, Rev. St., as amended by the fourth section of the act of May 28, 1880, already referred to, that "the evident intention of congress, to be gathered from those provisions, is that the tax shall attach as soon as the spirits are produced, and that such tax shall not be evaded except upon satisfactory proof, under section 3221, 'of destruction by fire or other casualty." We concur fully with the lower court in the view that the loss in the present case,as:describedin the petition, is not covered by section 3221, Rev. St., and .that plaintiff was not entitled to any allowance as claimed on th;e635gall.ons lost while iIi warehouse, but was properly taxed thereon. We do not deem it necessary to consider or decide the question whether, under the. principle laid down in the cases of Er8ki'M v. Hohnbach, 14 Wall. 613; Haffin v. MaBon, 15 Wall. 674; and Harding v. Woodcock; 137 U. 8;46,' 11 Sup. Ct. Rep. 6, -the plaintiff could maintain its said suit against the defendant under the facts alleged. The judgment of the ' circuit court is affirmed, with costs.
<'
LoUISVILLE, PUBLIC
W AR])HOUSE Co. v.
OF CUSTOMS.
(O£rcu:l.t CO'Il.'rt of Appeals, 81a:th Circuit. January 16, 1892.)
CmOUIT COURT, 011'
Tbe 4fth section of the act creating the circuit court of appeals enumerates the. cases in which appeals shall still be taken direct to the supreme court, and the s.xth section declares, that the circuit court of appeals shall have appellate jurisdiction of all other cases, "unless otherwise provided by law." Held, that this gives the latter court jurisdiction of an appeal from a judgment rendered by the circuit court in reviewing a decision of the board of general appraisers under the act of June 10, 1890.
ApPEALS.
lL SAME. The fact that sectidn 15 of the latter act authorizes the circuit court, when it deems the question of special importance, to allow an appeal to the supreme court, cannot be considered as having" otherwise prOVided by law," as such a construction would extend tl1e .direct appellate jurisdiction of the supreme court beyond the classes of cases specifically enumerated in section 5 of the act creating the circuit court of appeals, and would in fact deprive the latter court of all appellate jurisdiction; for prior to. that act there was "provision by" law in respect to appealll or writs of error in all cases. 8. .CUSTOM DUTIES-REIMPORTED WHISKy-WITIIDRAWAL lI'ROM BOND. The tariff. act of October 1,1890, (26 U.S.St. p. 624,) provides in section that on the reimportation of an article manufactured in the United States, and once exported without paying an internal' revenue tax, it shall pay a duty equal to the internal revenue tax:, ion ·sueh article.' Section 50 declares that any merchandise Qn bond before t,he date of the act may be withdrawn for cousumptionon of the duties in force before the act; when such duties are based upon the weight of the goods, the weight shall be taken at the time of the withdrawal. Bela,.thatwhHe,. under the internal revenue laws, the proof of spirits is determined weight, yet the tall: is always assessed. upon the gallon' measurement, whether the spirits are above or below proof,; and hence reimported whisky, when .withof lIndra,wij iron. bQnd, must pay according to the number of ,gallons at the plll'tlition. and not at time of withdraWaL"· '.;." '.' .' .. .
v.49F.no.7-36
_,1:)
from: tbeUnited ,Circuit Di!!ltrict ()l &elltucky; , : i ' ,I , , : "'" ' nlApplicatiQJl'lby ,fOI:' a bODll app'praisers, affirming tpa aoti00:of the suryeyor of custpmlil in exacting duti,es whiskies., Ademurrel':to the was sustained, (48 F.ed. Rep. 372,) and the court allowed lUilllPpeal. AffirD;led. AtttJ'Ustua E. Will8on, Thum, of counsel,) ,f()r appellant. Gee). W.JoUy, U.S.Dist. Atty.,for appellee. ,", ' Be$61'e JACKSON, Cire.uit Judge,\andSAGE and District ,',';>'
.J
'.?/.'
JApKsON, ,Circuit,J1udge. Thequestion'of the rooord in this· case is whether ,the duty whisky, onee exported, of thtt product or of the United States, shquld be and collected on the qU$Iltitythereof importedandep.tered a ellstOJJ;lS warehouse under bond, or upon the qllantityactuallywithdrawn,from sucli,warehouse. The material filets of the eaSe9n which, quel'ltion anses 'are,thefollowmg:Fivebarrels pf ,whisky, bavingthe serial num1169" U7,Q, 1171., and 1172, and· the United States, were exported to a foreigQ country Pef9re any internal revenue tax had been assessed and paid thereon. This whisky was raimported into the United StatE's on January 6, 1890. The importers executed a warehousing bond, as required by law, and the spirits were entered into the customs bonded warehouse at Louisville, Ky., in Jan5 by the "gauger Itt or uary·. about the time of such entry in the warehouse, were found to cOlltain 162 taxabllJ 'galloDs.:,The appellant, -as ,the importer .and consignee thereof, withdrew said, 5 barrels of whisky from the bonded warehouse on,N:.qYElm,bt\r 28, 189Pl and wasrequireij 162 gallons, the 'original quantity entered into warehouse, at 90c6nts per gallon, The actual quantity barrels at the time of the withdrawal was 155 'gallons l 7 gallons having evaporated or been losHvhile in the customs warehouse. The aI>pellant, as the importer, insisted that it was not liable to any tax or duty except on the 155 gallo!,1;$, shown by the be in the 5'ba:rrels at the date of their withdrawal. The surveyor..of the port at Louisville,acting as the collector bfcustoms, decided ,that appellant shouldpll:yduty on the 162 taxable gallons originally entered into the w8,rehoUSfl, and that it was not entitled;;to any deduction or a.llows-nee' on aecount of the loss of the seven betweeIlthe.dlilte of entl:'Y a.nd the whisky. The appeHant.paid ·the. tax or duty of 90 cents 'per, gallon .on said 7 gallons ot 10J;tspirits under protest, :claiming tha,t the:exaction was unauthOrized and megal,because the provisions oftha Revised Statutes of the UJiite4 requited the tax to assessed of the goodi1, and by the fiftiethseetion of theaet approved October 1, 1890, knoJvn ' as. 'the (CMcKiDley Bill,» it was provided that,wbeJi duty is. based upon the weight ()f merchandise deposited in any public or private waresaid dl1ty shill be' levied and upoll .the, weight of said
LOUISVILLE PUBLIC WAREHOUSE CO. tI. COLLECTOR OF CUSTOMS.
563
merchandise at the time of its withdrawal, and thereupon appealed from the decision of the surveyor or collector to the hoard of United States general appraisers at New York. The protest and papersl'elating to the matter were transmitted to said board of general appraisers, who, after consideration of the question presented, on March 9, 1891, affirmed the action o( the surveyor of customs, the same being in accordance with a decision of said board rendered February 4, 1891, No. 300 G. A. Thereafter on April 4, 1891, the appellant filed in the circuit court for the district of Kentucky an application for a review by said court of the questions of law and fact involved in the decision of said board of United States general appraisers, .who, in pursuance of the order of the court, returned to said circuit court the record and evidence of the proceedings taken and had belore it in the premises, with a certified statement of the facts involved in the case, and their decision thereon. This proceeding by appellant for a review of the decision of said board of gentlral appraisers was had and taken under the act of June 10, 1890, entitled "An act to simplify the law in relation to the collection of the revenue," (26 St. at Large, p. 131,) the fourteenth and fifteenth sections of which provide, in substance, that, if an importer is dissatisfied with the decision of the collector as to the rate and amount of duty chargeable upon imported merchandise, he may, within a certain time, upon the payment of such duty, give notice in writing to the collector· of his objection thereto. Upon such notice and payment the collector shall transmit the invoice and all papers and exhibits connected therewith to the board of three gem·ral appraisers at New York, which shall examine and decide the case thus submitted; and, if the importer is dissatisfied with the decision of said board, he may, within 30 days next alter such decision, apply to the circuit court of the United States within the district in which the matter arises for a review of the questions of lllw and 1act involved in such decision. The application for such review is required to set forth a concise statement of the errors of law and filet complained of; and upon the filing thereof with the clerk the court is required to order the board of general appraisers to make a return to said court of the record and evidence taken by them, with a certified statement of the facts involved in the case, and their derision thereon; and said return, together with such further evidence as may be introduced by either side to the controversy, "shall constitute the record upon which said circuit court shall give priority to, and proceed to hear and determine, the questions of law and fact involved in such decision, respecting the classification of 'such merchandise, and the rate of duty imposed thereon under such classification, and the decision of such court shall be final; and the proper collector, or person acting as such, shall liquidate the entry accordingly, unlesseuch court shall be of opinion that the question involved is of such importance as to require a review of such decision by the supreme court of the United States, in which case said circuit court, or the judge making the decision, may within thirty days:thereafter allow an appeal ito said supreme court." After said board of general appraisers' had, in obedience to its order, made. this x;etum to the <#cuit COUl'tas provided by theeaid act, which,
. 'FEDERAL ,REPORTER, vol. 49 . together with the application,constita,fud the record upon: which said coutt was to hear and determine the questions of law and fact involved; neither side having to introduce any further evidence, the United States attorney for the district of Kentucky.appeared on behalf of the United States, and moved to dismiss the proceedings, and also demurred thereto, because upon the facts appearing in the record the appellant or applicant was entitled to no relief. The motion to dismiss was overruled, and the demurrer was sustained. The applicant declined to plead furthel, and it was thereupon ordered and adjudged by the court that said application be and the same was dismissed with costs; and the court being of the opinion that the question involved was of such importance as to require a review of its decision by the United States circuit court of appeals for the sixth circuit,or by the supreme court of the United States, sustained the applicant's Ii10tion therefor, and allowed it an appeal to this court. The opinion of BARR, J., su&taining the demurrer and dismissing the application, is reported in 48 Fed/Rep. 372. The appellee or attorney for the United States hasmo\'ed to dismiss said appeal because this court has no jurisdiction toent6l'tain the same. In su.pport of this motion; it is insisted that under foregoing provisions1of the fifteenth section of the act of June 10, 1'890, the lower court could ,only allow theappealto:the suprElme court of the United States. Said section;did not'confer any absolute right of appeal on the part of the applicant for review from the'decision of the circuit court; but said oourt, or the judge making thedecision, was authorized and empowered an appeal to said supreme court" in case the 'court or judge should be of opinion that the question involved was of such importance as to require a review of the decision by the supreme court of the United Stat,es.. When said act of June 10, 1890, was passed, and went into op. eration; appeals could be takE:'nand allowed from decisions of the cir. cuit courts to the supreme court alone. No other court had or possessed appellate jurisdiction in respect to such decisions. By the act approved March 3,1891, the cireuit court of appeals was established and invested with appellate jurisdiction to review by appeal or by writ of error final decisions in the district and circuit courts, in all cases other than those provided for in the fifth section of said act, "unless otherwise provided by law,"By the fifth section of said act the cases are defined and enumerated in.which appeals and writs of error may:be taken from the district and circuit courts direct to the supreme , Itis not claimed that the present is one of the cases therein enumerated, which have to be taken for review to the supreme court; but it is claimed that it does not come within the provisions of the sixth section, of said act, because, while not embraced in the fifth seotion, it is "otherwise provided by law" that· the appeal shall be allowed. if at all, to the supreme court,-in other: words. that the appeal to the supreme court mader the fifteenth section of the act of June 10, 1890,is excepted from the jurisdiction of .this court'under the sixth l3E!ction of the act of March 3, 1891, by force of the '\Voros, "unless otherwise proviqed by law." This 'construction .of the- iwoacts wo\}ld.lead. to the resultofpractically,depIi:ving this
LOUISVIJ,LE PUBLIC WAREHOUSE CO. '.l COLLECTOR OF CUSTOMS.
565,
of all appellate jurisdictiori; because when the act of March 3, 1891, was passed, all appeals and writs of error were "otherwise provided by law." In adopting too new system of appellate 'courts the clearly-expressed intention of congress was to divide appeals and writs of error into two general classes, one of which should be taken direct to' the supreme court, while all others should lie to this court. The of the former is specific, while the latter is general; and the words, "unless otherwise provided by law," should not be interpreted so as to extend the direct appellate jurisdiction of the supreme court beyond the of cases enumerated in section 5 of said act creating thilicourt. That the appeal provided for under the fifteenth section of the act of Junel0,J890,hasto be specially allowed by the court or judge. making the decision, in no way affects the question. When allowed, the,appeal stands upon the same footing and in the same position as an appeal in any other case, and must be taken to that appellate tribunal which is given jurisdiction over the subject-matter involved by theact of'March 3, 1891. ,:Looking, then, to the nature of the case, to the avowed purpose of the act creating this court. and the ll-ppellate jurisdiction therein conferred, we are of the opinion that the motion to dismiss the appeal is not well taken,andshquld be overruled.' Upon the tnerits of the caSe the appellant has assigned the following' errors as grounds for reversal of the judgment below, in that the court erred in sustaining the demurrer; in approving and affirming the decision' of the' collector and board of· general appraisers in holding that the customs duty imposed bylaw upon such whisky is not "based upon the weight of merchandise;" in· deciding that the duty upon the whisky should be collected upon· the quantity thereof at the time it was entered into bond, and not upon the actual quantity at the time of withdrawal for consumption; and in dismissing the application for review of the de-. cision of the customs officers. These assignments of error involve only the one general question; whether, under the law, the appellant wa's properly chargeable with the 90 cents' per gallon tax on the 7 gallons of the whisky lost between the date of entry. into bonded warehouse and the withdrawal of the 5 packages or barrels. While the amount immediately involved is small, it appears that the present is a test case upon the question, which involves large amounts. The general proposition contended for by appellant is that the duty to be levied, collected, and paid upon the reimported whisky in question is to be ascertained by the quantity of·taxable gallons thereof at the time of withdrawfll, and not at the time of entry into bonded warehouse. By the tariff acts of March 3, 1883, and October 1, 1890, it is provided.... "That upon reimported articles, 'once exported, of the growth, product, or manufacture;C)f the United Stales, upon which no internal tax has been as.sessed or paid, * * *. there shall be levied, collected, 1!!ld paid a duty ('qual to the tax imposed b!:the internal revenue laws upon such articles." i The duty ,on the five barrels of whisky reimported by appellant IS thus made "equal" tothaHmposedbythe internal revenue laws; and itis claimed btappellant in support.onts position that as, by the provisions
566
J'EDEBAL BiEMRTER,
vol. >t9..
Qt:tlte:internal .revellue laws, "tax:gallons" of distilled spirits .are based upop "proofgalJons;" which upontheweight"qf.the merchandise,.the taxable quantit:r ofw.hisky must be determined by the "weight'''. of such whisky at the tim.e of its withdrawal, under the fiftieth section. of the act of October .1"1890, which provides"'rhatidtrandafter tMsact shall go into effeet, (October 6, 1890.} all wares, and merchandise previously imported, for which no entry hll!l been made, and all wares, and merchandise previously enteredwithout payment ofd\ltY andllnder bond for warehousing. transportation, or any purpose, which no permit of delivery to the importer or has been issued, shall be sUbjected to no other duty upon the entry or Withdrawal thereof than if the same were imported respectively after that day:providf'd, that any Imported merchandise deposited in bond in any public orllrlvate .bonded warehouse, ha.Ving been so deposited· prior to the 1st day of October, 1890, may be Withdrawn for consumption at any time prior to February I, 1891, upon .the paymetlt, of. dlltif's at the rate .i.D force prior to the of act: proyided, further. tbat, when duties are based upon the weight of merchandise deposited in. any public or private bonded warehouse, said duties Shall be l'evied and collected upon the weight of such mer. chandise tit the t.imeof withdrawal.'" .
its
The five barrels of whisky in thiscRse were reimported :while the act of March 3,1883. was in toree, and were deposited in bond in the customs warehouse prior .to, Oatober 1, l890, and being withdrawn prior to Febru8ry1,1891, were subject to the: rate of duty prescribed. not by the act of October 1,1890, but.by the act. of March 3, 1883, under the first of the above provisions. It is therefore a question by namenns free from doubt whether the second proviso. of said section, which may have rtlference tQiinportations under the act of October 1, 1890, has any that it does, the quesapplication' to the lJresent case. thin is presented whether the duty imposed on reimported.whisky, either under,thetlirilftlct of 1883 or 1890, is based .upon the "weight" thereof, Both of within thetme import ormeaningofsnid second said acts. contained in almost every schedule thereof numerous articles in ,respect to which the dutJt was based upon the weight of such articles, according. 00 the avoirdupois standard, such as pounds, tons, etc. The terms of shid provision, ,"when duties are based upon the weight of mllY therefore find ample subjects of application if taken itbtheir usual and ordinary sense, orH the word "weight" is given in its pi'imllryand ordinary meaning, such as the quantity of heaviness, thequalityoftbeing heavy, or the degree and extent of downward pressure under the .influence oLgravity, or the quantity of matter as estimated by the balance or scale. , Counsel {pl,appellant,.however, argues with much ingenuity that the as employed in said proviso, embrace words "weight of and include 'all quantity measure depending upon the specific gravity of the matter;''article, or thing measured; that, under the internal revenue law,. th",re :is, a difference between "proof gallon" measure and "gallon "measure, in thiS': that theJatter is a measure by quantity of of quantity, not by volume or bWk. while ,the former
LOUISVILLE PUBI.IC WAltEHOUSE CO. ,11·. COLLECTOR OF CUSTOMS.
567
bulk or volume, but by specific depends for its tainment upon weight of the whisky, so as to bring it within the provisions of said proviso. r:ltis not insisted that the'duty on reimported 'Whisky is based only :on weight, but that the taxable gallon is based upon the "proof gallon, It which is to be ascertained by: specific gravity, -that is, "weight,"-and consequently brings such imported merchandise within the terms and meaning of said proviso. 'fhis proposition is too refined and involves a construction of the fiftieth section of the act of October 1, 1890, and of the internal revenue laws, too strained and technical, to be sustained. It is provided by section 3249, Rev; St., that "proof spirits shall be held to be thata1coholic liquor which contains one-half its volume of alcohol, of a specific of seventynine hundred and thirty..nine ten thousandths, (.7939,) at (60°) sixty degrees Fahrenheit;" and rin order to ascertain the" proof" of liquors or distilled spirits, or the quantity f!ubject to tax, the use of hydrometers are authorized by sections 2918ll.nd.3249, Rev. St. The hydrometer, as its derivation is a water or volume measure employed to determine, the specific gravities of.liquids, and hence the of spirituous liquors. By section 3251, Rev. St., as amended by the act of March 3,1875, the rate 'of internal revenue tax on distilled spirits produced in the United'States is' 90 cents on each and every proof gallon, or wine gallon when below proof. This tax is to be collected on the whole number of gauge o,r wine gallons when below proof, and is to be increased "in proportion for any greater strength than the,strength of proofspirits"as defined by section 3249. Said tax is to attach to such spiritBas soon as the same "is in existence as such." 3248, Rev.',St. It thus appears that when the distilled spirits are:only proof,as defined by section 3249, Rev. St., or less than proof, the tax is to be levied and collected on the wine gallon,by the express terms of section 3251, Rev. St. If the spirits are above proof, as defined by section 8249, Rev. St., then, such excess of strength,is, by the provisionsofthelaw, to be ascertained, and the tax thereon is to be increased in proportion for any greater .strength then "proof", strength. To ascertain whether spirits haves greater strength than "proof," as defined, the hydrometer is ordinarilyemployedj but by section 3249, Rev. St., and by sections 329 and 880 of the act of October 1 1 1890,the sacra.. tary of the treasury is authorized, in his discretion, to employ other means of arriving at the strength of imported liquors, such as distillation or otherwise. It adttlits of no question that the tax on distilled spirits, when only proof or below proof, is based upon the. volume as measured and determined by the wine gallon. It is equally clear that, when the spirits areabo\re proof, the tax is to be increased "in proportion for any greater strength than the strength of proof spirits." The mode of ascertaining such excessive strength, andoi estimating: the taxcable gallons thus found to exist, in no way affects the standard of measurement. Under appellant's theory, if reimpPllted whisky is above proof, the duty is based upon and to be ascerUlined by the" weight" thereof, but, when it is at or below proof, it is, dutiable according to
568
DDERALREPORTEB,
vol. 49.
wine gallon or volume measurement. In the latter case the tax would be on the quantity imported and entered into bond; in the former, on the quantity on hand at the time of withdrawal. We cannot yield our assent to this theory. It was certainly not the intention of the law to prescribe one rule for taxing spirits at or below proof, and :another for taxing such s:piritB when above proof;· and the argument that because the strength of spirituous liquors is ascertained, under the law and regulations of the treasury department, by means of an instrument to termine the ,specific gravities of liquors, such ascertainment involves the" weight l'thereof, in the sense of the last proviso to section 50 of the act of 1, 1890; cannot be maintained. "Proof," as defined by Webster, 'means the act oUesting the strength ofalcobolic spiritsj also, the:degree of strength. as high proof, first proof, second, third, and fourth .proofs. In the internal revenue law, it is used in the sense of degree pf strength. It is said by Webster that formerly a very crude mode of ascertaining the strength of spirits was, practiced, called "proof." Tbespirits were poured on gunpowder and inflamed. If at the end of the combustion the gunpowder took fire, the spirits were said .tQbeabove.. proof. In ascertaining the strength-of distilled spirits, as compared' ,with a standard· fixed and defined by statute, whether the mode of ascertainment be by use .ofa water measure, called the H hydrometer," or by distillation, or the former crude gunpowder test, it cannotb, properly said that. such strength is determined by the weight .ofsuohspirits. Specific gravity is defined to be the ratio of the weight of:a body to the weight of an equal volume of some other body, taken as the standard or unit. This standard is usually water for liquids apdsolids, and ,air for gases. The specific gravity standard is fixed b;ysection 3249; Rev. St., for "proot''' spirits, and the volume measure, all' the basis of the tax thereon, is also defined. When the spirits "proof," this excess instrength,on which to base the increased tax, may be ascertained by a comparison of specific gravities with the standard so fixed,or by other meanSj. but this doe.s not involve the idea or proposition that the tax is based upon the specific gravity or weight, rather than the strength of the spirits. Strength, whenaboye proof, regulates and forms the basis of the tax according to volume, :mMsurement. The. mode of ascertaining such strength, as by the specifia.gravity, falls far short of showing or establishing that the tax or dutyis!based upon the weight of merchandise, within the true import and meaning of the second proviso to section 50 of the act of October 1, 1890. It is urged that under the authority of Brown v. Maryland, 12 Wheat. 447, defining the time when the power of the state to tax ,imported goods attached, the court should so interpret the customs laws as to make the duty attach at the time of withdrawing the. goods for consumption, rather than the date of entry into bonded warehouse. The .'tariff legislation. of congress has not been' heretofore so construed by the supreme conrtof the United States. On the Contrary, the general rule 'has been recognized and enforced that the assessment of duties·.on im-
11NrrED BTA'D:B>'. DOH 011.
ported goods is properly made upon the quantity actually imported and entered at the custom-house. The tariff acts of 1846, 1851, and 1864 all received this construction; and the importers were not allowed for leakage everi while detained for appraisement. See U. S. v. Southmayd, 9 How. 637; Lawrence v. OaHweU, 13 How. 488; and Belcher v. Linn, 24 How. fiftieth section of the act of October 1, 1890, by the last proviso thereof, makes an exception to this general and well-settled rule of making the, duty chargeable upon the quantity actually brought into the country, by declaring that, "when duties are based upon the weight ofrrierchandise deposited in any public or private bonded warehouse, said duties shall be levied and collected upon the weight of such merchandise at the time of its withdrawal." The appellant's case, as already stated, does not come within this exception, and the whisky imported by it was dutiable, under the general rule,upon the quantity actually imported and entered into bond. The tariff acts of 1883 and 1890 mak-e no provision' for any allowanr.e for leakage or evaporation while imported spirits are in a bonded warehouse, like tbat found in the seventeenth section of the acto! May 28,1880, (21 St. at Large, p. 149.) Allowances for such losses by lefl,kage or evaporation rest upon the express provisions of the statutes; and when not provided for therein the courts can make none, however strong the equity may be. This is the rule laid down recently -by the supreme court of the United States in the case of Thompson v.U. S., 12 Sup. Ct. Rep. 299, (decided at the present term, and not yet officially reported.) Upon the whole case, we are clearly Qf the opinion that the decision of the lower court Was correct, and accordingly aflinn the judgment below, with 00811$.
UNITED STATES 17.
DON ON.
otrmat 'Court, N. D. New 1.
York. November 2O,189L)
A 0blneEie labO\:Elr was arrested for being in the United States in violation of tbe exolusion aots,as amended by Aot Cong·.Oot. 1, 1888. The evidenoe s)lowed tbat be had iJl this country OQntinuously for 22 fears prior to April 1, 1891, but. that be was at lOngston, Cauada, in the last week 0 that montb. He denied having been there, and there was to show bis purpose in going, or bis intention as to returning. Held, tbat he was unlawfUlly in tbe Uuited States, and should be returned to Canada, as the country "wheuce he oame." Wan Shiny v. U. S"l1 Sup. Ct. Rep. 700, 140 U. S. 424, applied; In reAh. 'fie, 18 Fed. Rep. 291, distinguished. 'I. S.um-!4BEAB CORPUB-REvIEW-COMMIBBIONER'S FINDINGS. On habeas COrpU8 to release a Chinaman ordered bya United States commissioner to be returned to Canada, the commissioner's findings of faot oannot be reviewed.
CmNEllE LABORE'!ts-1'EMPORARY ABSENOE-RIGHT TO RETURN.
Petition by Don On, a Chinese laborer, for a writ ofhabea8 corp1Ul. Petitioner and one Lee Sing were tried before Edward L. Strong, Unitild States commissioner for the northern district of New York, for being. unlawfully in the United States, andwerehy' him ordered to be returned