In re ROSENWALD et al.

(Circuit Court, S. D. New York. January 6, 1894.)

CUSTOMS DUTIES-CLASSIFICATION -SUMATRA LEAF TOBACCO UNSTEMMED-EX

AMINATION of.

Certain Sumatra leaf tobacco, unstemmed, imported from Bremen, Germany, June 25, 1890, consisting of fifty-four bales, packed in the usual way, and divided into seven plantation lots, of which merchandise nine bales, being one in six of the whole importation, and in two instances two bales from each plantation lot, were examined by the United States examiner and appraiser at the port of New York by opening each of the nine representative bales, and drawing from different parts of each bale ten "hands" of the tobacco, carefully examining such hands as to fineness of texture and the quality of the tobacco, weighing each of such hands to ascertain where the leaves of the tobacco ran more than 100 to the pound or less, the classification of the merchandise by the collector and the liquidation of the entry being based upon the percentages of tobacco showing more or less than 100 leaves to the pound as applied to the sample bale, and also to the entire plantation lot represented by such bale or bales. All the percentages of tobacco thus shown to be of leaves requiring more than 100 to weigh a pound were assessed for duty by the collector at 75 cents per pound, under the provisions of Schedule F (Tariff Ind., New, par. 246) of the tariff act of March 3, 1883, and all the percentages showing leaves running less than 100 to the pound were assessed for duty at 35 cents per pound, under the same schedule and act, (paragraph 247.) Claimed by the importers' protest that there had been no legal examination of the tobacco sufficient to show that any part thereof was properly dutiable at 75 cents per pound, and that, consequently, all of the importation should bear a duty of only 35 cents per pound, under Tariff Ind., New, par. 247. The board of United States general appraisers affirmed the classification by the collector. Held, that the decision of the collector and of the board of general appraisers was erroneous, and that the examination of the tobacco was not sufficient to show any bale thereof to be dutiable at 75 cents per pound, and that, as a consequence, the whole of the importation should be subject to duty only at 35 cents per pound.

At Law.

Appeal by the importers from a decision of the board of United States general appraisers affirming the decision of the collector in the classification for customs duties of certain Sumatra leaf tobacco, unstemmed, imported into the port of New York, June 25, 1890. The examination of the tobacco by the United States examiner and appraiser was as above set forth in the syllabus to this case. The provision of the tariff act of March 3, 1883, under which the collector classified a part of the tobacco for duty, was in Schedule F, (Tariff Ind., New, par. 246,) as follows: "246. Leaf tobacco, of which eighty-five per cent. is of the requisite size and of the necessary fineness of texture to be suitable for wrappers, and of which more than one hundred leaves are required to weigh a pound, if not stemmed, seventy-five cents per pound; if stemmed, one dollar per pound." The provision under which the importers claimed in their protest was paragraph 247 of the same schedule, as follows: "247. All other tobacco in leaf, unmanufactured and not stemmed, thirty-five cents per pound." The testimony of the United States examiner was taken in the circuit court before a referee, under order of the court, and it was afterwards stipulated by counsel for the importers that all the leaves of the tobacco in the ten hands from each of the nine representative bales of tobacco examined were of the requisite size and fineness of texture to be suitable for wrappers, and that the percentages of light and heavy leaves (namely, leaves running more than 100 to the pound and less) were correctly given by the examiner. The testimony was also taken in behalf

of the government of several experienced dealers in the wholesale tobacco trade, showing that the examination made by the government officer was fully as thorough as the examination of similar unstemmed Sumatra leaf tobacco upon purchases and sales at wholesale in the trade dealing in that merchandise at the time of the passage of the tariff act of March 3, 1883, and since. The trade testimony also showed that the withdrawal of even 25 to 50 hands of tobacco from a bale, which commonly contained from 600 to 700 hands, would injure the commercial value of the bale as an original package. It appeared also that there was no transaction known to the tobacco trade where the character of the merchandise depended upon 85 per cent. thereof having certain requisites of size, fineness, and weight. No testimony was offered either before the board of general appraisers or in the circuit court in support of the importers' contention. On the trial in the circuit court it was contended by the United States attorney that the record and evidence showed that all the requirements of law in relation to the examination and inspection of this merchandise had been complied with; that every bale of the tobacco, upon entry, had been separately weighed by the United States weighers, and returns of such weight, giving the gross and tare, had been regularly made by such weighers; that more than one package in ten of the merchandise, namely one package in six, had been designated for examination by the collector, under section 2901 of the United States Revised Statutes, and was a full compliance with that provision of the law, the sending of any further packages of the merchandise for examination resting within the sound discretion of the collector, and the exercise of such discretion by an officer of the government being presumably correct, (citing Arthur v. Unkart, 96 U. S. 121;) that the examination of the tobacco by the examiner in drawing ten hands from each of the nine representative bales, as shown by the testimony and admitted by the stipulation, was thorough, as far as the hands and the leaves examined by him were concerned, and that the percentages of weights returned by the examiner in accordance with a table prepared for the use of such officers by the customs department of the government were correctly and truly given; that such examination of the merchandise, being equivalent to that usually made in trade, was sufficient to indicate the character of all the tobacco in the importation, (citing Sampson v. Peaslee, 20 How. 571; Yznaga v. Peaslee, 1 Cliff. 493; article 449, treasury regulations of 1884.) It was also claimed that the sufficiency of the examination of this tobacco was res adjudicata in this court, (In re Blumlein, 49 Fed. 232, per Wheeler, J.,) and that such decision of Judge Wheeler had not been reversed by the circuit court of appeals, which affirmed the judg ment of the circuit court in that case, and did not overrule his finding that the examination of the tobacco was sufficient. U. S. v. Blumlein, 5 C. C. A. 142, 55 Fed. 383. The United States attorney also cited numerous decisions of the treasury department, running back a number of years, showing the continuous practice of determining the dutiable characteristics of merchandise by samples of representative packages, notably treasury decisions, synopsis 8299, as to the requisite examination of leaf tobacco; synopsis 3579, as to the tare of sugar; synopsis 4932, as to the tare on bales of hay; synopsis 5284, that Sumatra tobacco was to be allowed schedule tare because of easy damage to the leaf; synopsis 2658, weight of cigars to be ascertained by weighing two boxes in ten; synopsis 1664, tare by percentage on sugar in kegs; synopsis 3579, tare by representative packages; treasury regulations of 1884, art. 1467, as to determining weight of railroad iron from average; also section 2915, Rev. St. U. S., as to samples of packages of sugar in order to ascertain the true quality thereof; and article 979 of treasury regulations of 1884, relating to the sampling of sugar for examination and classification,and it was argued that if the classification of sugar under the tariff act of March 3, 1883, which provided for different specific rates on sugars of different standards, covering a wider range of duties than that provided for leaf tobacco, could be determined from samples of at least one in ten, the determination as to the character and weight of leaf tobacco could be ascertained in like manner from a practical and commercial examination of not less than one package in ten. It was contended that the government was entitled to duties at the rate of 75 cents per pound on all of the tobacco

contained in three of the plantation lots, where the examination of the sample bale indicated that 85 per cent. or more of the tobacco was of the requisite size, fineness, and weight to be suitable for wrappers, under the provision of said Tariff Ind. (New,) par. 246. In behalf of the importers it was argued that the examination was entirely insufficient and illegal, and that all of the tobacco was dutiable only at 35 cents per pound.

Edward Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U.S. Atty.

Curie, Smith & Mackie, (William Wickham Smith, of counsel,) for importers.

LACOMBE, Circuit Judge. I am not satisfied that the examination given was sufficient to answer the requirements of the statute. It should be such as to determine whether the tobacco has or has not the distinctive features which place it in one or other of the paragraphs imposing duty. About one-sixtieth of each bale was examined, with this result:

There appear here too great variances, even in the tobacco from the same plantation, to warrant the assumption that the other 5960 of the examined bale, as well as the contents of the unexamined bales, contain tobacco of both grades in the proportions found to exist in the trifling amount examined. It will not do to say that the examination was such as a merchant makes when buying tobacco, because the merchant in that case is looking only for such distinguishing characteristics as are known to trade. The statute has prescribed a duty test for tobacco wholly unknown to trade, and, to determine whether imported tobacco possesses the noncommercial characteristics which subject it to a higher duty, the examination should be full enough to insure accuracy, which this examination seems to have failed to do.

Decision of the appraisers reversed. All should be reliquidated at 35 cents, as the government has not by competent proof shown that any single bale of it was 75-cent tobacco.

HILLS et al. v. ERHARDT, Collector.

(Circuit Court, S. D. New York. October 10, 1893.)

CUSTOMS DUTIES-CLASSIFICATION-"CANDIED CITRON."

Candied citron, being the rind or peel of the citron fruit prepared by pickling in strong brine, then cutting the fruit into halves or quarters, and soaking in fresh water to extract the brine, afterwards boiling in sugar syrup until the fruit is thoroughly saturated with the sugar, thereafter drying the same until the syrup has drained off, and then glazing the fruit with another preparation of sugar, the article when so finished and imported being in a soft and semitransparent condition, and packed in drums or boxes,-held properly dutiable as classified by the defendant, collector of customs at the port of New York, as "fruit in sugar," at 35 per cent. ad valorem, under Schedule G of the tariff act of March 3, 1883, (Tariff Ind., New, par. 302,) providing for "comfits, sweetmeats, or fruits preserved in sugar, spirits, syrup, or molasses, not otherwise specified or provided for in this act, and jellies of all kinds, thirty-five per centum ad valorem," and not duty free as "dried fruit," under the provision of the free list of said tariff act, (Tariff Ind., New, par. 704,) which is as follows: "Fruits, green, ripe, or dried, not specially enumerated or provided for in this act."

At Law.

Action brought by the plaintiffs, importers, against the defendant, collector of customs at the port of New York, to recover the amount of an alleged overpayment of duties on certain merchandise imported by the plaintiffs during the months of May, July, and September, 1889, which merchandise was classified for duty by the defendant collector, as "fruit in sugar,” at 35 per centum ad valorem, under the provisions of Schedule G (Tariff Ind., New, par. 302) of the tariff act of March 3, 1883, which is as follows: "302. Comfits, sweetmeats, or fruits preserved in sugar, spirits, sirup, or molasses, not otherwise specified or provided for in this act, and jellies of all kinds, thirty-five per centum ad valorem." Against this classification the plaintiffs duly protested, claiming that their merchandise was duty free, as "dried fruit," under the provision of the free list of the same tariff act, (Tariff Ind., New, par. 704,) which is as follows: "704. Fruits, green, ripe, or dried, not specially enumerated or provided for in this act."

Thereafter plaintiffs duly appealed to the secretary of the treasury, who affirmed the decision of the collector. The present suit was duly commenced within the period provided by law for the recovery of the amounts of duties alleged to have been overpaid. On the trial it was shown by witnesses for the plaintiffs that the merchandise in question was prepared from the citron fruit grown in Italy; that the fruit, when gathered, was at once put into a strong pickle of brine, and kept therein often for a period of months; that, after such pickling, the fruit was cut into halves or quarters, and thoroughly soaked in fresh water, so as to entirely exclude the brine; that the next process was boiling the fruit in a syrup composed of sugar and water; that, after such boiling, the pieces of the rind or peel were placed upon shelves, so that the syrup might drain off, and leave the fruit comparatively dry; that the concluding process of manufacture was the glazing of the fruit by a further application of sugar, leaving the article in a soft, semitransparent condition, and thoroughly saturated with sugar, although none of the syrup remained in a liquid state in the packages or drums in which the merchandise was packed for the market. A number of witnesses were produced by the plaintiffs from the wholesale trade in this country dealing in this article, whose testimony tended to show that the goods were known in trade and dealt in as "candied citron" or "Leghorn citron," and were regarded as coming within the general class of "dried fruits," and designated under that class in certain well-known trade journals. Some testimony was also offered in behalf of the plaintiffs that the terms "comfits" and "sweetmeats" were restricted in trade to fruits or articles of confectionery, and did not include

the candied citron in question; also that "preserved fruits" or "fruits preserved in sugar" included in the wholesale trade only the class of articles put up in bottles or jars with liquid syrup, and in a condition to be used upon the table without further culinary or other preparation; that the "candied citron" in question was never used except as introduced into cakes, pies, or other pastries, and subject to a further process of cooking in such use.

On behalf of the defendant the testimony of several witnesses from the wholesale trade was produced, tending to show that the term "dried fruits," as understood in trade at the date of the passage of the tariff act, included properly those fruits which had been subjected only to a process of drying or dessicating either by natural or artificial heat, such as apples, peaches, plums, raisins, figs, and the like, and did not include the "candied citron" in question, which, although partially dried, was in reality a fruit which had been and was preserved by a treatment in sugar, known and generally dealt in commercially by the terms "candied citron" or "Leghorn citron;" that the terms "comfits" and "sweetmeats" had no restricted trade meaning other than the commonly understood meaning of those words as given in the dictionaries; and that the description "fruits preserved in sugar" likewise had no restricted trade meaning confining that term to any particular kind or class of fruits, the preservation of which was insured by the presence of sugar in liquid form or otherwise.

At the close of the testimony motions for a direction of a verdict were made by plaintiffs and defendant respectively, and denied by the court.

Comstock & Brown, for plaintiffs.

Edward Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty., for defendant.

LACOMBE, Circuit Judge, (charging jury.) The collector of the port laid upon this article a duty of 35 per cent. The importers claim that he was wrong in so doing, and that the article should pay no duty, and in support of their contention they referred to a paragraph in the free list, (par. 704,) which reads: "Fruits, green, ripe, or dried, not specially enumerated or provided for in this act." Now, this article is a fruit, and it is dried; therefore it would be within the general designation of that paragraph, unless testimony should satisfy you that the phrase "dried fruits" had acquired some particular trade meaning, which excluded this particular article.

The first question, then, for you to determine is this: whether there is in the trade and commerce of this country which deals in articles like this such a special meaning for the phrase "dried fruits" as will exclude this citron. If you reach that conclusion, then (the article not being within the paragraph under which the plaintiffs seek to classify it) your verdict must be for the defendant. If, however, you reach the conclusion either that there is no trade meaning for the phrase "dried fruits" which excludes citron, or that there is some trade meaning to the phrase "dried fruits" which includes citron, you still have another question to pass upon. The paragraph I have read, you will notice, is qualified with a proviso. It is: "Fruits, green, ripe, or dried, not specially enumerated or provided for in this act." So, although this citron be a dried fruit in fact, although you reach the conclusion that it is also a dried fruit in commerce, if it is specially provided for elsewhere in the tariff act, then it is that special proviv.59r.no.7-49