,(.,
'
this complaint, on the ground that the same did not state facts sufficient tocons.titute' a causeof'aotiotl','" The principal pointpresentEld the co:wpl/!-int is that there is in fact no contract for labor alleged inasmuch as Lamont made no contract ,t<> "r"prk for ,defendant. The c<;>11tract was by a proposal to Lamont by defendant that.if he would come to the United States, as aland perform services for defendant, it would give :wages as would be satisfactory to him. It is Il1leg«iithat inconsideration of' said promise, and in pursuance of said said Lamont did migrate and come into the United States; 'and in pursuance of said contract worked as a laborer upon the line :oftlit!' defendant's toad. hereset'forth appears to have been an offer on the part or det'Qi18fttlt to Lamont to continue>him in its employ if he would emigrate to the United States, and work for it. The wages would be satisthis offel"1? No doubt, it would factory to Lamont. Did Lam<?nt But, instead of have been better to have alleged' diI:ectly that be that, the pleader has seen fit to allege that he did emigrate to the UI1ltMdid, for defendant, this was done in said mqst bl;) that part of the agreement by defendant. "This is, an action ,at law, and the rules for ofthepleadings,a;e those prescribed bY,the statutes of Mont.a#a,., that the pleadings in theease shou14 view to substantial justice between the partIes. Camp. St. Mont. div. 1, § 100. I think that the allegatio?s o( what was embraced in the propositionsuffiacceptall.ce. The only point dCtrouble is, where can it be said that the acceptance was made? I think when Lamont started on his migration to the 'United States. He came here then under a conwas made in Canada, and detract to ll\.bQ(, for fendant prepaid his transportation. The complaint states facts suffi,a cauSe of and the demurrer is overruled. cient to
In
In re GRIBBON. ','
(Circuit
D. New York. April
CUSTOMS 'Du'llms...., CLASSJFWATION-HEM8TITOHED HANDKERCHIEFS-EMBROIDERED ,!JANJ?ll;ERCHIEFS.,.-;HE,MSTITCHE.\J, i ,EMBROIDEnJ!lp. HANDKERCHIEFS.
Certain handkerchiefs, composed 'of linen and cotton: ,Imported under the tariff act of October 1, 18110, consisting'-First, of handkerchiefs with a hemstitched border; second. of handkerchiefs embroidered or scolloped on the r.!Lud" third, of handkerchiefs with a hemstitched with initial letters or withllgiJres worke,d by border, hand or maohinery,-aMl dutiable, thebemstitched handkerchiefs, under par, .gro.ph"a.9: aQ$;J8:1HoO per centum ad valorem, as "handkerchiefs;"' those e as textile, ,f,abrics, embroi,dered by hand or ma, uMer the ptbvlSOiti paragl'sph873. at 60 per centum ad valorem: i ani! only't,hose handkerchiefs which are e'mbroideredandalso hemstitohed as su,cll ullder paragraph iJ78 ,of, slWd llo<;t.,Ttie handkerchiefs were only. and wllre embroidered only, h.eld Uot to be 'included In the provision for "embroidered andhemstitclied hand-
IN RE GRmBON.
79
kerchiefs, " as contained in paragraph 873, under which provision such handkerchiefs ,were classified for duty by the collector of the port of New York.
At Law. Application by the importer under the provisions of section 15 of the so-called "Customs Administrative Act" of June 10, 1890, for a review by the cirCUIt court of the decision of the board of United States general appraisers affirming the decision of the collector as to the merchandise which was imported into the port of New York October 10,1890, consisting of certain linen and cotton llandkerchiefs, part of which had a hemstitched border only; others were embroidered or scolloped on the edge, without hemstitch; and a third class had hemstitched borders, and were ornamented on the body with initial letters or figures embroidered by band or machinery. All the handkerchiefs were classified for duty by the collector of the port at the rate of 60 per cent. ad valorem, under the provisions of 373 of Bchedule J of the tariff act of October 1, 1890, which is as fol"(878) Laces, edgings, embroideries, insertings. neck ruffilngs, ruchings, trimmings. tuckings.lace window curtains. and other similar tamboured articles, and articles embroidered by hand or machinery, embroidered and hemstitched hand· kerchiefs, and articles made wholly or in part of lace. ruffiinRB, tuckings, or ruchings, all of the above named articles composed of fiax, jute, cotton. or other vegetable fiber, or of which these 'Substances or either of them is the component material of chief value. not specially provided for in this act. sixty per centum ad valorem: provided, that articles of wearing apparel and textile fabrics, when emb!oidered by hand or machinery, and whether specially or otherwise provided for in this act. shall not pay a less rate of duty than thltt fixed by the respective paragraphs and schedules of this ,act upon embroideries of the materials of which tbey are respectively composed. " , As to the handkerchiefs which were hemstitched and also embroidered or ornamented with initial letters, the importer filed no protest. As to the handkerchiefs which were embroidered only, and those which were hemstitched only, the imI>0rterprotestedagainst the classification by the collector. claiming that the hem-, stitched handkerchiefs and the embroidered handkerchiefs were dutiable only at the rate of 50 per cent. ad valorem under paragraph 349 of Schedule I of the tariff act of October 1, 1890, which provides, among other things,for "handkeI" chiefs, " eo nomine. ' The board of United States general appraisers sustained the decision' of the collector. holding that the provision in paragraph 373 for" embroidered and hemstitched handkerchiefs" should be understood distril:Jutively. and that the copulative '"and" should be read "or." so that the clause should apply to handkerchief8 which were hemstitched and those which were embroidered. as well as to handkerchiefs combining both characteristics of being hemstitclled and also embroidered. The proceedings were appealed to the circuit court by the importer, and testimony was given in that court before one of the board of general appraisers. R8 an ·officer of the court, in behalf of the importer and the governmeut. The importer offered the testimony of one witness to the effect that handkerchiefs which were embroidered and also hemstitched were known in trade and commerce at the time of the passage of the tariff act as" embroidered and hemstitched handkerchief!!." On the part of the government, testimony of several trade witnesses from leading commercial houses dealing in the goods in question was produced, from which it appeared that the usual name for handkerchiefs which were embroidered and also hemstitched was in trade, at the time of the passage of the tariff act, "Hemstitched Embroidered Handkerchiefs" or "Hemstitched and Embroidered Handkerchiefs. " but that they were sometimes called for by the designation " Emuroidered and Hemstitched Handkerchiefs." The proofs also showed that hemstitched handkerchiefs were a standard article in trade and commerce at the time of the of the tariff act, that handkerchiefs which were embroidered only were likewise a standard article in trade at that time, and that handkerchiefs which were both embroidered and also hemstitched were likewise a standard article. The trade testimony went to show that the handkerchiefs which were hemstitched and ornamented with an embroidered initial letter were known in trade as "Hemstitched Initialed Handkerchiefs." On tbe trial coun· sel for the importer argued that the provision of paragraph 373 should be read and understood literally according to the words of the act. and as referring only to handkerchiefs which were both embroidered and hemstitched. On behalf of the government it was urged that the prOVision for hemstitched
80
FEDERAL.:REI'ORTER,
vol. 53.
handkerchiefs. being first found in the tarifl' act of October 1, 1890, and never hav,htgbeen used in any prior tarifl', must be construed to apply to all handkerchiefs which were hemstitched; that since the decision of the supreme court of the United States in Robertson v. Glendenninl', 132 U. S. 158, 10 Sup. Ct. Rep. 44, th!3term "embroideries" used in the,e.arlier part of paragraph 373 would not cover eml>ro'dered handkerchiefs; and that consequently the prOVision for embroidered a,url.bemstitched handkerchiefs must presumptively mean that embroidered handktJrchiefs, which were a standard article of trade, were to be covered by the provlSiQPnaming them in conjunction with hemstitched handkerchiefs. The United Stateo\l.attorney cited 19 Op. Attys. Gen. p. 157, where the attorney general of the Unjteq States held that the phrase "forgings of iron and steel." as used in clauses Nos. W3 and 167 (Tarifl' r.nd. New) of the act of March 3,.1883, included forgings maee of imn and forgings made of steel"and was not limIted to articles composed ofo()th irolJand steel cOmbined in the same forging: also' the case of Marvel v. M/lrritt. U.. S. 11. 6 Sup. Ct. Rep.2Q7, whllre certain iron ore .was held by the supreme court to be included within the provision of Schedule M, "Sundries," in .of' the Revised Statutes of for "mineral and bituminous substances in a cru4e state," and . the expression" mineral and bituminous substances" in ,that statute Wl/oS to be taken distributively, so as to cover all substances within thede,scription, whether min/lral or;bituminous or both. The United atsenate report No. 2,13,0 of the fifty-first congress. second seSSIOn, of Duty onlmports into the United States from .1789 to 1890, inclusive, "'etc"in which in theindex to the t8riff act of October 1.1890, "handj{erchiefs, cotton," apd ,also "hemstitched handj{erchiefs, cotton. flax, jute," Were referred to as covered by paragraph 373; and also from the inde;c to the o( 1.1890, contained ina document entitled "Comparison of the CllstQrll$ of 1883 with the New Lliow of 1890, with index. etc.· Prepared under the Direction of the Committee on Finance. United States Senate, in Accordance w,ith. Senate Resolution Of, December 5. 1890." in which "handkerchiefs, bemstitchl14. cQtton, flax. jute. "and also "hemstitched handkerchiefs, cotton. tlax, jute,", arllall referred to paragraph 373.
Culie,,'Smith & Mackie, (W.Wickham Smith, of counsel,) for the importer; Edward Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U. S.Atty. LACOMBE, Circuit Judge. These articles which are in dispute are concededly handkerchiefs. As such they would be covered by the phraseology iIi paragraph 349 of the tariff act, if that were the only provision. It is claimed on behaJf of the government, however, that they should pay the duty prescribed by paragraph 373 on laces, edgings, embroideries, and various other articles, including "embroidered and hemstitched handkerchiefs ;" the contention of the government being that that phrase should be read as if it were written "embroidered handkerchiefs and hemstitched handkerchiefs," or "embroidered or hemstitched handketchiefs." Of course, there is no di1ficulty, under the decisions, in construing such a clause so as to transform 8 conjunctive into a disjunctive word, provided there is anything in the act itself, or in such outside evidence as is proper to be considered, which would call for such a method of construction. The question, howeverj first raised is this: 'Whether there is any reason at all why the ordinary meaning of the words as they are written, which implies that the handkerchiefs referred to sbouldbe both embroidered and hemstitched, should be given any other construction. My attention is called to nothing in the aCt itself which requires such a construction. There is nothing shown in the debates of congress or the reports of i:f;$ committee which indicates that it was the intent of con·
IN RE SCHILLING.
81
gress to provide in this paragraph a rate of duty for both varieties, or rather for all three varieties, of handkerchiefs,-the embroidered and hemstitched, the embroidered, and the hemstitched,-nor does there seem to be any illogical or absurd or peculiar result which would be reached by interpreting them as they are written. The latter part of the paragraph, the proviso, may be fairly interpreted as laying upon embroidered handkerchiefs the same rate of duty which other embroideries of the same kind would pay. That being so, I see nothing to support the contention of the collector in any the evidence which is presented here, or in any of the references to the proceedings of congress, except it be the mere casual circumstance that a clerk of the finance committee, in preparing a tabulation for the use of his superiors, has made an index which indicates that he understood that this phrase referred to two different varieties of handkerchiefs, rather than to a single kind. That being so, I do not feel warra:llted in so construing the act as to make it read otherwise than is expressed upon its face. The result is that the hemstitched handkerchiefs which have no embroidery upon them should be classified for duty under the provision of handkerchiefs in section 349; the embroidered handkerchiefs which are not hemstitched should be classified for duty as textile fabrics which have been embroidered by hand or machinery, and must therefore pay the same rate of duty is paid by embroideries of the material of which they are composed, which, I understand, is cotton. Therefore, they should pay the same rate of duty as the other articles enumerated in paragraph 373. The decision of the board of appraisers is therefore reversed, and the collector directed to assess the duty in accordance with this opinion. In re SCHILLING et al. (CircuIt Court of Appeals. Second Circuit. October 25, 1892.)
1.
CUSTOMS DUTIES- CONSTRUCTION OF STATCTE-DECLARATIONS OF CONGRESSIONAL COMMITTEES-SWF.ETENED CnocoLATE.
The official statements of members of the conference committees on the tariff act of 1890 (26 St. at Large. p. 567) that by a clerical mistake paragraph 318 of Schedule G was made to read. "Chocolate. (other than chocolate confectionery, and chocolate commercially known as . sweetened chocolate,') two cents per pound;" but that the parenthesis should have ended after "confectionery," although supported by the history of the bill and its amendments, the attention of congress having been called to the mistake. and no action taken. do not authorize the courts. when construing the statute. to change the punctuation actually made. in the absence of other evidence that the intent of the statute required such change. The article commercially known as "sweetened chocolate" is not dutiable at 50 per cent. ad valorem as chocolate confectionery, under paragraph 239. Schedule E. of the tariff act of 1890. (26 St. at Large. p. 567.) nor as similar thereto, under the similitude section, nor at two cents per pound, under paragraph 318 of Schedule G. but should be classed as "cocoa. manufactured, not specially provided for." under paragraph 319 of Schedule G, dutiablll at two cents per pound. 48 Fed. Rep. 547. affirmed.
2.
SAME-CLASSIFICATION-SWEETENED CHOCOLATE.
Appeal from the Circuit Court of the United States for the (;outh· ern District of New York. Affirmed. v.53F.no.1-6