IN 8E WETHERELL.
267
of any state or territory whIch has no system of commutation for Its own 1)risoners, shall have a deductIon from theIr several terms of sentence of five days In each and every calendar month during which no charge of misconduct shall have been sustained against each severally, who shall be discharged at the expiration of his term of sentence, less the time so deducted, and a certificate of the warden or keeper of such prison penitentiary of such deduction shall be entered on the warrant of commitment: prC'vided, that, if during the term of imprisonment the prisoner s'hall commit any offence for which he shall be convicted by a jury, ail remissions theretofore made shall be thereby annulled." 18 Stat. 479.
It is claimed that the deduction or credit provided in the act of 1875 would entitle the prisoner to his discharge. The district attorney contends that, as the state of California has a system of commutation for its prisoners, this act does not apply. Section 23 of the act of April 15, 1880, (St. Cal. 1880, p. 73,) provides a system of credits for convicts confined in the state prison, for the purpose of securing faithful labor and obedience to the rules and regulations of the prison. This act does not apply to persons imprisoned in the county jails, and the petitioner therefore claims that he is entitled to the benefit of the act of congress. The answer to this claim is that the act of congress applies only to United States prisoners who are confined in a prison or penitentiary of a state or territory,-that is to say, in a state or territorial institution,-and does not, in terms, or by fair interpretation of language, apply to aUnited states prisonel' confined in a county jail. U. S. v. Schroeder; 14 BIatchf. 344, Fed. Cas. No. 16,233; In re Terry, 13 Sawy. 601, 37 Fed. 649; U. S. v. Goujon, 39 Fed. 773. The distinction is found in the fact that punishment for the higher crimes is generally executed in the state institution, where labor and a system of discipline is required, and a commutation of sentence is p,rovided as a reward for service and good conduct. The question whether the prisoner is entitled to a deduction of one month provided in section 5543 of the Revised Statntes is not, I understand, pressed for a decision at this time; but, to save the trouble and expense of further proceedings, I am prepared to say that, in my opinion, he is entitled to such deduction. U. S. v. Schroeder, supra. There are no credits provided for the good be'havior of prisoners confined in the county jails of this state, and hence it follows that the provisions of section 5543 of the Revised Statutes are applicable to a United States prisoner so confined. That part of this section relating to prisoners in a state penitentiary is undoubtedly superseded by the act of March 3, 1875; but it does not follow that the provision of the section relating to prisoners confined in jails is repealed or modified by that act, and in my opinion it is not. In re WETHERELL.
(Circuit Court, D. Massachusetts. No. 3,602.
March 10, 1894.)
1.
CUSTOMfl DUTJES-" STEEL STRIPS.»
Steel in the form of strips, 3 to 3lh Inches wide, less than 25-1000 of an inch thick, and more than 100 feet long, whIch were cold rolled to a
J'EDEBAL REPORTER,
vol. 60.
·81ltt8.Cllll and not cut from wider pieces, is not "sheet steel·ln strips,· , within ,the meaning of Tariff Act Oct. 1, 1890, par. 148, ,cl. 2; for' "sheet as rommerclally understood, is always hot rolled. Such,' atrips of steel come within paragraph 146 of such act, which imposes a duty of two cents a pound on "steel in all forms and shapes not speclal1y pronded fori" but they are neither bars nor rods, and hence are not subjec1lto the ac!dltlonal duty Imposed by paragraph 152 on "steel bars or rods, ot whatever shape or section, which are cold rolled." AND BARS.' ·
At Law. Petition by Frank J.Wetherell for a of the decision of the board of general appraisers assessing merchandise for dutr· Sherman Hoar, U. S. Atty. , Joseph H. Robinson and Selwyn Z. Bowman, for petitioner. ,'°'1'"
of the boar;dof general appraisers, assessing, on sevinto thePQrtof Boston by the, petitioner, a 50 per cent'llmad valorem, under the second proviso of paragraph 148 of the tariff act of October 1, 1890, Stat. 577.) Wbe steel imported was jn the form of ,strips from 3 to 31- inches wide, more than 100 feet in length, less than 25·1000 of an inch in ,thickness, and valued at 61- cents per PQund. It was cold rolled toll li"lrface finish, and was not cut or sheared from wider pieces. levied a d,uty on the steel at the rate of two cents per po:q.ndj,under the following clause in paragraph 146 of said act: in all forms and shapes, not specially provided for in this actj"and also an additional, duty of one-fourth of one cent a pound, under 152, which provides for such additional duty "on allJron or steel bars or rods, of whatever shape or section, wb.i;chare cold rolled, cold hammered, or polished in any way." The petitioner duly prowsted against this additional duty, and con· tended that the steel was only dutiable at, the rate of two cents per pound, under paragraph 146. The board of general appraisers decided that the was in erl(Or, and held that the article is $pecially provided for; that it is .sheet steel in strips, and subject to a duty of 50 per centum ad, valorem under the second proviso of paragraph 148, which is as follows: Q(
CQL.':r, eirc'llit Judge. This is a. petition praying for a review ,I)f steel imported
,"That ,fiat steel wire, or sheet steel in strips, whether drawn througb dies or J:'0ll!'l, ; Wltempered or tempered, ot whatsoever widt\l, twenty-five one thousandths (jf an inch thick or thinner (ready tor use or otherwise), shall pay II; duty of fifty per centum ad valorem."
Upon the present petition, the United States contend that the board of general appraisers was right, while the petitioner insists that the import in question was only subject to a duty at the rate of two cents per pound, under paragraph 146. It is admitted that the steel is neither bars nor rods, and that, therefore, the collector was wrong in assessing the additional duty of one-fourth of one cent per pound, under paragraph:152. The whole question now in controversy turns upon the proper construction of the words "sheet steel in strips" in the proviso of paragraph 148. There ap,peared before the board of general appraisers three witnesses, who
IN RE WETHERELL.
269
testified generally to the commerei31 designation, and process of manufacture, of cold-rolled steel, sheet steel, and sheet steel in strips. The board of general appraisers, pursuant to an order of the court, made a return of the record and evidence, with a,. statement of the facts involved and of their decision; whereupon the court made another order, referring the case to one of the appraisers to take and return such further evidence as might be offered by the petitioner or the collector. In pursuance of this order, the testimony of several additional witnesses was takp.n and returned to the court. I think the following conclusions of fact may be fairly drawn from the evidence: First. The steel in controversy had no fixed commercial designation on October 1, 1890. Various terms are employed by witnesses in describing it. It is called "cold-rolled strips," "strip steel," "cold-rolled clock-spring steel," "cold-rolled steel," "a strip," "common cold-rolled cast steel," "cold-rolled steel in strips," "sheet steel in strips," and "sheet steel." Second. Among merchants and importers there was, on October 1, 1890,no steel product which was specially denominated as "sheet steel in strips." Strips cut or sheared from sheet steel were dealt in by the trade to a limited extent, but they do not seem to have been imported in the form of strips, nor to have had any settled commercial designation. Third. The term "sheet steel" was known among merchants and importers on October 1, 1890, as designating a well-understood article in commerce, namely, a form of steel not less than 8 inches in width, not exceeding 12 feet in length, hot rolled, and produced in a sheet mill. Fourth. All the witnesses testified that the steel in question would not be known among traders and importers as "sheet steel in strips," because it is cold rolled, and from 100 to 250 feet in length. The only witness who qualifies in any way this statement is :Mr. !foen, who says it was spoken of by himself and the men in his employ as "sheet steel" or "sheet steel in strips;" but he at the same time declares that it was sold to his company as "cold-rolled spring steel," and that it was known "in common usage" as "strip steel." It is contended on behalf of the United States that, as the steel in controvemy had no clearly established commercial designation on October 1, 1890, and the term "sheet steel in strips," in paragraph 148, had no specific commercial meaning at that time, con· gress must have intended to have used the words "sheet steel in strips" in their ordinary sense, and that, as so interpreted, the words aptly describe the steel in question. The word "sheet," it is said, signifies, in ordinary usage-First, thinness; secondly, breadth; and, if the qnalifying words "in strips" be added, there is eliminated the characteristic of width, leaving unaffected the characteristic of thinness, and that, as thus construed, the whole expression means a thin, narrow piece of steel of any length. On the other hand, it is urged by the importer that the steel in question could not have been intended by congress to be classified as "sheet steel in strips," because it was never recognized among traders and importers as sheet steel in any form, but always as a steel prodnct whiCh was .cold rolled in a strip form, whereas sheet steel, whether in strips or
as
FEDlIlRAL
ealwa.y.s 8i slleet .InUl, . and nevel" more,.;tban 12iteet in and because congress, in the prior tariff act of 1863, (22 Stat·. 499,) uses the word "strips" in the steel the qualitying word "sheet;" that to construe ,the term instri,ps" ill the present act to include the ,import in is to entirely ignore the well-known and recogof "sheet steel;" that it is, in effect, to nized eliminate the· word "sheet" from the' statute, and to construe the sentence if it read "ste'el in strips, of whatsoever width, twentyfive one-thousandths of an; inch thick, or thinner." The addition of the word!'sheet" before "steel" makes the meaning of the exsteel dOij.btful,and I do not think the connecting w()rdsin the paragraph,l'whether drawn through dies or rolls, untempered or tempered, ofwhatsoever width, twenty-five of an inch thick or, tllinner," help the contention of either in;. the present controversy, or assist the court as to the propercc>nstruction of thi$ When the question of a is one of doubt, must be rej;lolved in favor of the importer. The intention of congress to impose a higher rate of duty -should be expressed in clear and -unambiguous language. Twine Co. v."Worthington,.141 U. S. 468, 474, 12 Sup. Ct. 55; U. ,13. v.. Isham, 17 Wall. 496;IJartranft v. Wiegmann, 121 U. S. 609,7 $up. Ct. 1240; ·. Gun v. Scudds, H. Exch. 190. It SE:)ell)s to me tJ:tatthis within tbis rule. The de· cision ottheboard of general appraisers is reversed, 'and it is determined by this court that-the several lots of steel covered by said decision should be classified under par8{,Taph 146 of the tariff act of Octo· bel' 1, 1890, as steel in fOtnlsand shapes not specially provided for in said act, valued above four cents, and not above seven cents, per pound, and subject toa duty of two cents per pound, and not sub· ject to an additional duty under paragraph 152 of said act.
=====SOCIAL REGISTER ASS'N v. HOWARD. (01rcu1t coUrt, b. New Jersey. February i6. 1894.) 'l'he wordj;l "Social as applied to a list of. persons resident in a certain locality, compiled by its publisher with reference to the perstandin.g' of such persons, constitute a valid trade-mark, sonal and and tIlelr use by the publisher of a competing list will be restrained. REGISTER.
In Equity. , .On motion for injunction pendeI).te lite. Bill by the Social Register AssociatJ:6n.against Howard. _Motion grant.. ed. G. G. Joh]). for defendant. q.aEEN,; . name Judge.. The: cowplainant ,has for a number of in 'York, under the distinctive -title of "Social :RegiStElr,',' the names and resi·
anq