UNITED STATES V. BATTLE" 00.
141
in many other cases, holds that when a. person is in custody under process of a state court of original jurisdiction for an alleged offense against the laws of that state, and it is cla.imed tJ1a,t he is :restrained in violation of the constitution of the United States, the circuit court of the United States has a discretion whether it will diSchal'ge him in advance of his trial in the coUI't in which he is indicted, although, if special circumstances requiring immediate action exist, it will interpose and discharge the accused. The district court of the United States has equal authority with the circuit court to issue a writ of habeas corpus. This doctrine was adhered to in Cook v. Hart, 13 Sup. Ct. Rep. 40, (decided in November, 1892.} It Was.3 ease of rendition, and in the opinion the court, from Robb v. Connolly, 111 U. S. 624-627,4 Sup. Ct. Rep. 551, slUd: "Upon the state courts, equally with the courts of the lYn1on, rests the obli· gation to guard, enforce, and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them."
And again, the court said: "While the power to issue writs ot babe!1S corpus to state courts which are prOceeding in disregard of rights secured by the constitution and laws of the United States may exist, the. of exercising such power before the question bas been raised or determined in the state courts is one which ought Dot to be encouraged; * *. and we think that comity demands that the state courts under whose process htl is held, and which are, equally with the federal courts, charged with the duty of protecting the accused in the enjoy· ment of his constitutional rights, should be appealed to in the first instance."
There are no special cireumstances in this case requiring immediate action by this court, and no urgency demanding its interference. Following the views announced in the foregoing decisions, the prisoner is remanded to the sheriff of Ramsey county, and the writ of habeas. corpus is dismissed. UNITED STATES v. (Clrcult Court of .A.ppeals, Eighth Clrcult. No. 169. -CUSTOMS DUTIES-CLABSIFICATION-CHLOR.U, HYDRATE.
& 00.
February 6, 1893.)
Chloral hydrate is dutiable at the rate of 25 per cent. au valOl'em, under paragraph 76 of Schedule A of the taritr act of October 1, 1890, "as a cht'mical compound not especially provided tor," and not at ISO cents per pound, under paragraph 74 of said schedula, as "a medicinal prepar!ltion of wbich alcohol is a component part, or in the preparation ot which alcoholls used." 50 Fed. Rep. 402, atIlrmed.
Appeal from the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri. Application by Battle & Co., chemists, for a review of the board ()fgeneral appraisers' decision as to the classification of certain im· ports of chloral hydrate. The circuit court held that the goods were under paragraph 76, Schedule A, of the act of October 1, 1890. 50 Fed Rep. 402. The United States appeals. Aftlrmed. Statement by CALDWELL, Circuit Judge:
.' ...FEDERAL REPORTER,
vol. 64.:
<\ . 'I:,. ..
. ,Is. .'t,\1e eastem Q./1l, .. e,'f.;1.00g lij."l!.n.t.,., ,of, ,Tbecharac;ter ..of '.o.t th,e United ·. ' a.p.p.e.al,., .... ... . . .. ' th. e, ctr,'.c,.,ut. \90,'urt the case, and ,. t," .· '" :: ,.,' " ' tiOns Of arlStngd set tol'tllin the oplnlon of :JUd J!fB.A.YER, fti. d'1blloW'9: ."i "'IJ.. "ThIs. Is a;: case' tbatartses Under the clistoms t1lecl1$e Is. dutiable at fifty pou,pd, under ll.aragraph 14 ofSffiedule A of the ta.rttr act of Octodel' 1, 1800' as 'a mediCii:lal preparation · · * of, wJ:l,ich alcohol is a comor in the preparation of which alcohol is' Used,' or whether it is ponent: iutiable rate the 'rate of tWenty.tl.ve per e'ent. ad valorem, under paragraph 76 Jf, 114me schedule,:as'a compound · · « not espeCially pro.r.!4E¥i J .:,' , .· . compellEld to adopt thEl latter view, for the following reasons: Chloral hfdrate is not mentioned by name til the tarltr act, and in that sens& it is provided for.' FUrthermore, all of the experts. agree that It is 'll.cbemlcai compound: It lUtSwel'S,'t1:lE!refore, all. of the requirements Of. .. p.h. of.: On thoe, other hand, the.r.e a re some grave Ob.. . ,to. clalS:llIYwg under paragraph 74 of Sched¢.e A.. In the tl.rst place, it that alCohol is clearly not a component part of 'chloral the process <If, manufacturfPg the latter drug (when the alcohol process 'ill emPloyed} the 8lcohol is broken up into its constituent elements, and does not reappear In the drug, and cannot be.extJ;acted therefrom, as it may b!l when used merely . as a solyent, or. to treat oils or other fatty subcase for the"go"ernment rests on the fact that alcohol is used In one,'of b most oom1l10n processeS emploYed for manufacturing chloral hydrate;' Hence it· 'ts eIa.imed that It !Sa 'mediCinal preparation, « · · in tMpreparatlon of which alcohol is'used.' A very substantial ob;1ectlon to this view is that chloral' hyd1'8.te may' be, and sometimes is, manufactured by two from suBstances cont.a1n1.ng considerable starch, without tl,i.e use 'of' lany alcohol. Chloral hydrate, thus produced, would certainly not be dutiable under paragtaph 74; and the result'ot holdIng the present importation, Ulld,el:' that clause Would be t(} lnlPose a different rate of cluty op the'same drug; depending upon the process of manufacture. "A:not'h('r'view of theClUJe l!l lilso entitled. to much weight. Considering the whple :of paragraph 74i" ream. as follows: 'All medicinal preparations, inclu<llngmedicinal preparations, of which alCohol is a component part, or in the preparation of which alcohol is used, not specially llrovided for in this act, fifty cents per pound,'-lt would seem' as though congress, in this clause, only had in mind a eIaSs of medicinal preparations in which alcuhol is used as an ingredient wtthout being broken up, either as a solvent, or to extract and hold, in solution 1he ,medicinal propertie!! of certllin vegetable subs1ances or drUgS: . The use of alcohol in the manufacture of chloral hydrateJ>ears no unfllogy to the use'll last melltloJ;l.ed. The drug is manufactured in the alcohol process by passing dry chlorine gas through alcohol. By so doing the alcohol is broken up,.,chemically, a part of its hJdrogen is liberated, and Is replaced 1)Y atoms of, chlorine. The process results in the formatioJ;l.pf a solid SU'bS,tance of crys1;.1Uine structure, which is then treated' with water to form chloral hydrate. , ,"As before !'Itated, contain4J.g starch may be used in lieu of alcohol to' IJUpply the elements necessary to form, chloral hydrate. In view of the., mllJ;\Uer in whil;h lI1cohol .)$ treated in the process above described, the colin considers it extremely improbable that chloral hrclrate was one of the medicinal preparations which congresS iIitended to make dutiable under {14of Schedule A. Under the testimony, it is also doubtful whether Chloral hydrate ill, in a strictty legal or dictionary sense, 'a medicinal In the form ,in which present importation was made, it Is clear that the article in question is' ,not' a complete medicinal preparation, for .the 1'ellSOn that it cannot be adlllinistered in the form in w:hich it was ImR0rted, };lut must be turthlU' prepared by tJ1.e druggist or apothecary. ,)Yrll!ie, the. case is nat ' entirely trom doubt, I think, for the reasons abovesmted;' that the article in q1,lestl,onshoJIl,d be assessed under paragraph 76, !f8'il&1'"Cnemical compound not speela:lly'provided for,'tmd at the rate of twenty·five per cent. ad valorem." ",c' \,' , f r'. . ,
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IN .RE GERDAU.
148
George D. Reynoldl!l, U. S. Atty. Eleneious Smith, (Jol!leVh Dickson,on the brief,) for appellee. Before OALDWELL and SANBORN, Circuit Judges, and RAS, District Judge.
sm·
CALDWELL, Oircuit Judge, (after stating the facts.) Havipg reached the same conclusions as those expressed in the of Judge TRAYER in the circuit court, the judgment below is affirmed.
i[n 1"9
GERDAU. February 6, 1893.)
(Circuit Oourt, S. D. New York. 1. OuS'1'OJQ DUTIES-IvORY.
!he proVl.sl.ons ot paragraph 618 ot the tarl1r act ot October 1, 1890, admittlng, tree ot duty, ivory not sawed, cut, or otherwise manufactured.! do not apply to elephants' tusks sawed Into pieces ot various lengths, wheu such sawing requires skill and is done,. not for convenience In. tr:ansportation, but to separate the ivory into different grades, adapted to ditrerent uses. Hartranft v. Wiegmann, 7 Sup. Ot. Rep. 1240, 121 U. S. 609,' dist1Dgu1shed. tl. SAME-CONSTRUCTION oll'LAws - KNOWLEDGB 011' WAYS AND MEANS OOHAn importer ot Ivory cii.Uedthe attention of the ways and means committee to the tact that a certain provision relating to cut ivory in a tariff bill then in preparation would make a tusk once sawed dutiable, but. the bill was not changed in this respect. Aot Oct. I, 1890, par. 618. Held, that it' should be presumed that congress Intended to make ivory once sawed subject to duty. 8. 8AME-PROTlI:ST-REVERBAL 011' APPRAISERS' DECISIONS. To entitle an importer to a reversal ot a decision by the board ot general .appraisers, as provided In the taritr aot ot June 10, 1890, it must be proved that the classification contended for by him 18 right, and not merely that the collector's classification 18· wrong. HITTER.
Appeal by the importer from decision of the board of general appraisers affirming the deci$ion of the collector of the port of New York. Affirmed. Stephen G. Clarke, for importer. James T. Van Rensselaer, Asst. U.S. Atty., for collector. COXE, District Judge. The merchandise in question consists of parts of elephants' tusks, sawed into pieces of various lengths. The collector classified it under paragraph 462 of the new tarifi' as "manufactures of ivory · · · not specially provided for in this act, forty per centum ad valorem.." The importer protested, insisting that it was entitled to free entry under the provisions of paragraph 618,; as ((ivory and vegetable ivory, not sawed, cut, or otherwise manufactured.." Tbe board overruled the protest and sustained the collector. The importer appeals. The following facts are found by the board: That the different parts, into which the tusks are sawed., are. especially adapted to different uses, the sawing being done withreterence ro this seloo-