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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-
144
FEDERAL REPORTER,
vol. 54.
tion; that certain parts of the tusk, which are W()rth from 50 to 100 percent. more than certain other parts, are from the Pm'ts Qfless value bY,sawing; tllat the grades of ivory, having been thus selected, are designed fordtfferent uses and are marketed in different countries; that sawing or cutting ivory requires expert skill and judgment, the operation being performed not for con· in transportation, but for the purpose of selection. Samples of iheiIDportation were presented at the argument, consisting of tusks' sawed into pieces of different lengths. Some pieces were short, others long. One large tusk had been sawed but twice, once near the middle and once near the end. No distinction was made, however, either at the argument or in the briefs between the variollS samples. They will, therefore, be considered together, it being assumed that they pJ,'esent the same characteristics so far as the present controversy is concerned. If the merchandise in question is "ivory, .not .sawed or cut," the importer is entitled to a reversal; it it is "ivory, sawed or cut," the decision of the board should {be affirmed. It is wholly immaterial whether or not the collootlji' haS classified it fo!" duty under the right ,section. " tb,e., ,paragraph from free list apply? This is the only question. The language of the law is very plaIn. It says, as explicitlyaa possible, that only ivory which is not sawed or cut can enter duty free. That this ivory is sawed is admitted. Here, then, to 00 end of the controversy. ,But it is argued tl;w.t:theJlmguage does l;lot what it says, and that a sawing whichiB the equivalent of a is implied. In other words,' that a longitudinal sawing or cutting of the ivory into rudimentary piano keys, knife and pistol handles,' was meant. If the language, were 8tJllbiguous there might be room for judicial interpretation; but it is not. It says ivory which is sawed is dutiable, ivory which is cut is dutiable, and ivory which, by some process different from sawing or cutting, is manufactured, is dutiable. It would seem that, on' the face of the statute, congress, so far as ivory is concerned, considered sawing and cutting as two species of manufacture. These two, being known, were mentioned eo nomine, but there might be other processes by which ivory could be manufactured, and hence the general clause, "or otherwise manufactured." But whether this be so or not, it seems too clear for debate that the importations are subject to duty whether they are manufactured or not. If the language of the free list simply had been "ivory, not sawed," there would be little room for argument that ivory which was sawed could enter free. The addition of the words "cut, 01" otherwise manufact11red" if it does not add to, certainly does not dimish the strength of the collector's position. Certainly there is little force in the suggestion that the sawing or cutting must in e'Very case amount to a manufacture. If that had been the intention of congress the language would have been the same as in paragraph 726 of the act of 1883, "ivory, unmanufactured." There woula have been no difficulty, under the various decisions of the courts, iaarriving at the true meaning of the word ''unmanufacturedl' appearing in mch a connection. Hartranft v. Wieg·
an
IN BE S.CHMID.
145
Rep. 324. The words "not sawed or cut" cannot be read out of the statute; they are there and must receive some construction. What other meaning they can have than the one contended tor by the collector I am at a loss to conjecture. Were it necessary to resort to extrinsic circumstances to arrive at the legislative intent, a persuasive piece of evidence is found in the record. It appears that the importer, Mr. Gerdau, called the attention of the ways and means .committee of the fifty-first congress to the fact that if the language of paragraph 618 became law, a tusk of ivory which was once sawed transversely would· be subject to duty. There was no misunderstanding at that as to the true meaning of the paragraph; all understood it alike. With the attention of congress thus sharply drawn to the inevitable result of the proposed enactment it must be presumed that they legislated in the light of this knowledge. If they had intended to permit the free entry of sawed. ivory they would have modified the paragraph; not having done so, the presumption is clear that they did not· so intend. The case of Hartranft v. Wiegmann, supra, is not in point. The court was there dealing with a provision of the law· which placed on the free list "shells - - -not manufactured." If the statute had read "shells, not cleaned, ground, or otherwise manufactured" it is manifest that the decision would have· been different. The reasoning of the board in the able opinions returned with the record is, to my mind, unanswerable, and their decision should be affirmed.
mann, 121 U. S. 609,7 Sup. Ct. Rep. 1.240; U. S. v. Semmer, 41 Fed.
In re SCHMID.
(Olroult CoUrt, S. D. New York. February 10, l898.) OUBTOM8 DUTIES-GOODS IN BOND-ADDITIONAL DUTY.
Rev. St. § 2970, providing for an extra duty of 10 per cent. on goods rema.lnlng in a bonded warehouse longer than a year, Is repealed by A.ct OCt. I, 1890, § 50, and under the latter act such additional duty cannot be levied upon goods which had been in 'bond more than a year before Ootober 6, 1890, (when the act of 1890 went into effect,) and were withdrawn in January, 1891. U. S. v. McGrath, 50 Fed. Rep. 404, approved.
Appeal by importer from the decision of the board of general appraisers affirming the action of the collector of the port of New York. Reversed. Stephen G. Clarke, for importer. Henry C. Platt, Asst. U. S. Atty., for collector. COXE, District Judge. The merchandise in question-whiskey, wine, tobacco, etc.-was imported and entered for warehouse January 10 and March 9, 1889, and remained there until January, 1891, when it was withdrawn and the duties paid. The collector assessed an additional duty of 10 per cent. under the provisions of section 2970 of the Revised Statutes. The importer protested against the exaction of this duty upon the ground that the law permitting it had v.54F.no.1-1O