34:4
FEDERAL REPORTER,
vol. 53.
UNITED SWA'fES v. WOTTON et 81,
(Circuit Oomt of , 1.
First OircUit December 6, 1892.) ... No.30.
QuSTOMS 'DU'l'IEs-OUSBI'nCA.'tiON-"PLUOKED" OONEY SKINS.
coney skins-;--that is, such as have had the hair removed from not dutiable as "dressed furs or skins," within Tariff Act 1890, par. 444, but are entitled free, under parag,'aph 588, as "fur skins not dressed many manner!' 50 Fed. Rep. 693, afhl'lUed. 2. SAME'"'-'DIlITERMINATIONOF CLASSIFICATION.
/lCtual character aud.(jondition. of ,the skins when imported, and not the llSe to which they Rresubsequently to be put, determine their classi· fication. U. S. v. Schoyel.·Ung,13 Sup. at Rep. 24, followed..
Appeal from the Circuit Court of the United Sw.tes for the District of Massachusetts. AtL8Iw.. ''Plucked· coney skins" were imported by James A. Wotton. and William C. Wotton, as Wotton Bros., and .were entered at the .port of.Boston, and appraised by the collector as subject to a duty of 20 per centum ad valorem, as hatters' furs; or .dressed fur skins. Wotton Bros. appealed to the board of United States. general appraisers" :Which reversed the action of the collector,and held the imporw.tion' entitIedto free entry under tariff act of October 1, 1890, (paragraph: 588,) as a "fur skin, not dressed in any,manner." The collector, under the customs administration act, appealed to the cir· cuit court, which affirmed the decision of the board 50 Fed. Rep. 693. TheU:nited States, on application of the attorney general, appeals. AflirIhed. l!-"rank D.A1len, U. S; Atty., and' HeDry A. Wyman, Asst. U. S. Atty. . . '., '. Richard Olney and Gerrard IITine. Whitehead, for appellees. Before PUTNAM, .Cil'cuit ··Judge, and NELSON and WERB, District Judges. WEBn. District Judge. This case presents the question of the proper classification under the tariff law of October .1, 1890, of an importation of· gOOd8 called by the importers "hatters' furs." They were plucked coney skins. All that had been donew them after be· ingtaken off ·the animal was to open them. cut off the legs, ears, and other useless parts, clean and stretch them, and pluclr the long hair frbm them.'l'hey were then properly denominated coney skins." and were in condition to be dressed for use in making various garments, or to have tile fur cut off and manufactured into hats. The evidence is that, although coney skins are principally consumed in the manufacture of hats, they are also employed, like other fur skins, for trimming, and various garments; the extent of this lat· tt'r nse with fashibn. At the time of this importation more coney skins than usual were appropriated to articles of dress. Be· fore they could be so manufactured, the skin or pelt must be treated in a way to be converted into leather, and be. made soft and flexible. This process is by every witness recognized as "dressing," and is in·
UNITED STATEStJ. WOTTON.
345
differently called "dressing the skin" or "dressing the fur." For themannfacture of hats this treatment of the pelt is not necessary, and would be a" waste of labor and expense. It is then to be ascertained and determined what, under the tariff act, these goods in fact were. This is not concluded by the name given to them by the importer, unless it is. found that they were in commerce SQ generally known by it as to make that name their propet commercial designation. They were not dressed coney. skins, nor dressed coney fur skins. They would not be regarded as dressed furs by any furrier or dI'esserof furs. They were not "furs prepared for hatters' use," but material from which such' furs could be prepared, just as they were raw materials which could be converted into dressed skins, or dressed coney fur skins, or.· dressed coney furs, or dressed cont>y,-as one might choose to speak of them,-fitted to be made into garments. Plucking out the long hair was, it is true, one step in preparing the fur for the hatter, but it was also a not uncommon step in preparing them to be made up into various articles of dress. The evidence adduced is voluminous, and somewhat. conflicting. These goods are quite generally said by fur dressers to be raw or undressed coney skins. Witnesses whose business has been for years plucking fur skins disclaim the trade of fur dressing. Men of the largest experience testify that, if an order were given them to "dress the fur upon a lot of skins," they would not understand what was meant. Plucking' ma;r be and is done both before and after the skins fire dressed, and dressed flkins are plucked or unplucked, according to the variety of skin and the demand of fashion. :Many witnesses, when compelled- to explain what is meant by "dressed fur on the skin," though confessing that the expression is unfamiliar to them, say that they should think it would apply to these goods. In so testifying they seem rather to be striving to find a meaning for the terms than to be explaining words well known and thorougWy understood by them. Hatters and manufact,urers of hatters' furs teetify that the tel'ins "dressing" and "dressed furs" are not employed in speaking of hatters' fure. The testimony to prove that the cost of the skins is increased by plncking affords no assistance in solving the questions presented in this case. It needed no witness to satisfy the court that labor of any kind upon them involves expense. Bnt whether they are dutiable or not is not by congress made conditional on their cost. The act of October 1, 1890, (26 St. p. 567,) contains three paragraphs, under some one of which these goods must be classified, namely: (444) "Furs, dressed on the skin, but not made up into ar· ticles, and furs not on the skin, prepared for hatters' use, twenty per centum ad valorem;" (587)-in the free list,-"furs undressed;" (588)-also in the free list,-"fur skins of all kinds not dressed in any manner." These are all the provisions of the act about which there can be any question. The similitude section is inapplicable; that relates only to nonenumerate,d articles. These furs are enumer· ated, if held to come under any of the paragraphs quoted. And that they rlo come under some one of them is not controverted. The difference is in regard to which of the paragraphs of the statute is ap-
346
FEDERAL REPOltfER,
pl{oo.bleI W. The stutu1le speaks of furs and fur skins generllJJl:ly:: no particular fur,with the of "furs prepared for hattel'li' use," and even'there no mention riot on is made of tM animaI bearing the fur. Nor, with the same exception, does it refer to the use for which the furs are intended.. Paragraph 4UmH.nifestly intends furs so dressed that· they are in: condition to bem.llJde up into· what are popularly known· as "fur goods," like caps, capes, mantles,muiTs; etc. That such dressing means curing and leathering .the pelt is· plain, and these are "furs dressed' on the skin." any doubt that they are dressed fur 'skins? In the opjniOllof'the ·court;tb.is language of paragraph 444 shows the meanitrgof "undressed/, and ''not dressed in any manner," as used in parilig1'aphs 587 and, 588. They are all to be construed as indica t· ing of the pelt. , Arid tbeseconey skins, which may be adapted to the class of fur mafhtfittrtim'es above referred to, or may have ,the fur upon them taken frOm the pelt, and fully "prepared for hattel'$/ use," are to be clal&SmM'for duties,acoording to their actual. chaJ.'acter and condi· tioll'whenimported into the country. In determining that classificatiori,th:e use to which they will be ultimately put is not to be con· sidered. ,n it were, goods in all respects precisely alilre would at one time'besubject to a; duty 'Of 20 per centum ad valorem, and at an: other be entitled to freeentl'y. U. S. v. Schoverling, (Nov. 7, 1892,) 13'Sup.:Ct:· Rep. 24. But, as said by Mr. Justice Story in Bacon v. Baneroft, 1 Story, 341; the terms of tariff laws are to be construed in accordance with commercial usage and understanding. Recognizing this rule of interpretation, and keeping in view the evidence that theseskinsca.n be dressed and "made up into articles," the courtystill holds, upon all the evidence, that, according to general con:nnerciaJ., usage and understanding, they are to be classified as "fm skins not 'dressed in any manner." If any doubt on this point were entertattied, the courSe of departmental rulings in regard to similar goods;' under successive ta:ri:ff acts, and the fact· that in this act of October 1,1890, congress retained the exact terms that had been so l'Uledup6D, 'Wonld lead the court to the same result. Jlldgtnent of the circuit· court affirmed.
Ex parte 'MOSES.
(Circuit Court,
D. Pennsyhania. No. 82.
December 27, 1892.) PATENT OFFICE
Rev. St. § 4906, providing tbat, on -the apvlication of any party to a contested ejlse pending In the patent ofllce, the clerk of any federal coUrt shall issue a SUbpoena for a witness commanding bim "to appear and testify," does not include an authority to issue a subpoena duces tecum.
DUCES TECUM lNTEIlFlllliENCE PROCEEDINGS.
AUTHORITY OF CLERK -
Rule to show cause why an atttachment should not issue against Geol'ge StUltl't f(,l' contempt in ,refusing to produce certaia letters ill
EX
,1'AR'lID'MOSES.
347
ouediellce to a suopoena duces itecum issued by the clerk in an interf(;l'ence proceediilgpending in the patent office; ,Rule discharged. The sUbpoena was issued'under Rev.'St, § 4lJ06, which reads as follows: "Sec. 4906. The clerk of any counof the United Stutes, for any district or territory wherein testimony is to be taken fur use in any contested case in the patent office" shall, upon, the, application of, any party thereto, or of his agent or attorney, issue a subpoena for any witness l'e8iding or being "ithin such district or teiTitory, commanding him to appear :lnd testify before any officeI.' in such district or territory authorized to take depositions aud, affidavits, at any time and place in tho subpoena stated: but no witness shall be required to attend at any place more than forty miles from the place where the subpoena is served upon him."
Jones, Carson & Phillips, for the motion. R. Dewey, opposed. DALLAS, Circuit Judge. Under section 4906 of the Revised Statutes,asubpoena was issued by the clerk 9f this court, commanding George Stuart to appear and testify before an officer in this district authorized to take depositions and affidavits, at a time stated in the subpoena, and at a place not more than 40 miles from the place where the subpoena was served upon said George Stuart. In this subpoena a clause of duces tecum was inserted, commanding also the production of a certain letter. The subpoena is under the seal of this court, and the testimony to be taken is for use in a contested case pending in the patent office. The witness has duly appeared and testified; but, upon a ground and for reasons which need not be particularly mentioned, but which would not constitute a justification of his refusal if a lawful subpoena in that behalf had been duly served upon him, he has declined, and still declines, to produce the letter referred to. He disclaims, through his counsel, any disrespect to the court, or intended contempt of its process, and seeks only an adjudication upon the question of the regularity and sufficiency of the subpoena, as to the duces tecum clause. To this he is entitled. If the writ is not lawful, disobedience is Dot a contempt. Rev. St. § 725. The authority to issue any subpoena such as has been issued in this instance is, and must be, wholly statutory. It is derived from, and is dependent solely upon, the section of the Revised Statutes which I have mentioned. In the absence of that section, any subpoena, either to testify or to produce a document, could not, in aid of a proceeding in the patent office, be lawfully issued by the clerk of this court. It, and it alone, casts the duty upon the clerk to issue a subpoena; and in charging him with the performance of that duty it expressly defines and limits its extent, and, of course, restricts his power within the same bonndaries. The language of this legislation is not general or indefinite,: it is particular and specific,-"the clerk * * * shall · * · issue a subpoena for any witness, · * * commanding him to appoor and testify." It is not admissible that. from these words, a duty and authority to issue a subpoena commanding, under penalty, the production of documents, should be implied. This is unquestionable upon general principles ; but in this matter the intent of congress that such an implication of power should not be assumed is quite obvious. In this connection it has said nothing whatever
J'EDDAL REPORTER t voL 53.
about .. duces tecum, but, in dealing with the subject of depositions under a dedimus potestatem;' it has plainly and expressly distinguished a subpoena to testify merely from a subpoena duces tecum.' I tnust presume that the distinction was in mind in the section 4906,aswel1 as in the ,enactmentot sections 868 and ll.D.dthat, if in the former,8s ip the latter,' it had been intended t98uthorize 8 subpoena duces tecum, that intention would have been expressed. The'rule tor attachment is discharged.
UNITED STATES No. 24-
T.
RAND. November 29,1892.)
(OIrcu1t Court of Appeals, First Circuit.
1 OLAntB· AGAINST
UNITED STATEs - JURISDIOTION OJ' CmOUIT AND DX8TlUC'r COtlIrr8-'CQHPTROLLER'S DECISIONS. .
'rhe dis&llowance, by a, district court, of a cla1m 'against the United States for fees, for jurisdiction to pass upon the merits, is not .. b,ar to a subsequent petition for the allowance of the claim, atter determination that the ,court has jUrisdiction. UNITED STATES COMMISSIONERS-DOCKET FEES·
Jl1'DICATA.
'
1.
. Under Rev; St. § 847, providing that the comrrilsElloner shall receive "for I.qguing any 'warrant or Writ, and for any other service, the same compensation as .Is allGwed to clerks for like services," the commissioner is entitled to docket earned before the passage of the deficiency nppropriation blll of August 4, 1886,. wWch contained a proviso "that for issuing any warrant or writ, or for other necessary service, commissioners may be paid the Sll-me compensation as is allowed to clerks for like services, but they shall not be entitled to any dO\lket fees;" since such proviso was intended as 8Jl amendment to section 847, and was prospective in its operation. U. S. V. Ewing, 11 Sup. Ct. Rep. 743, 140 U. S. 142, and U. S. T. Wallace, 6 Sup. Ct. Rep. 408, 116 U. S. 398, followed. W ARRAl\TTS FOR COMMITMENT.
SAME-}'EES FOR RECOGNIZANCES AND
Rev. St § 1014, provides that pr00eedings for the examination of persons charged with offenses against the United States are to be conducted "agreeably to .the ususl mode of process against offenders in such state;" and Rev. St. 1\1e. c. 133, § 10, provides for the recognizance of the party upon any adjournmellt of the examination, and for Ws commitment it 110 lIufIicient Bureties are offered, or Ws offense is not bailable. Held,