text:
Arthur v. Zimmerman

ERROR to the Circuit Court of the United States for the Southern District of New York.

In 1873 and 1874, Zimmerman imported certain goods from France, which were composed of cotton, and commercially known as 'hat braids.' Arthur, the collector of the port of New York, imposed upon them, and collected, under protest, a duty of ninety per cent of thirty-five per cent ad valorem, under the sixth section of the tariff act of 1864 (13 Stat. 209), which imposes that duty upon 'cotton braids, insertings, lace trimmings, or bobbinets, and all other manufactures of cotton not otherwise provided for.'

It appeared, upon the trial of the suit to recover the excess so paid, that there were goods known as cotton braids, used for other purposes, but that the goods in question were commercially known as 'hat braids,' and used exclusively for making and trimming hats and bonnets.

The court below, being of the opinion that the articles were only liable to duty at thirty per cent, under the eighth section of the act of July 14, 1862 (12 Stat. 551), so instructed the jury, and directed a verdict for the plaintiff. Judgment having been rendered thereon, the collector brought the case here.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. H. E. Davis, Jr., contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Zimmerman


text: Talk:Arthur v. Zimmerman

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Arthur v. Zimmerman


text:
Arthur v. Zimmerman/Opinion of the Court

The articles imported by the defendant in error are embraced in the general words of the act of 1864, and, if there were nothing else in the case, would be subject to the duty therein provided.

They are, however, commercially known as 'hat braids,' used exclusively for enamelling hats and bonnets. These articles are specifically enumerated in the acts of 1861 and 1862, and are there made subject to a different and a lower duty.

By these acts, and by the Revised Statutes, Congress establishes and recognizes the distinction between 'cotton braids' and 'other manufactures of cotton not otherwise provided for,' and 'hat braids.' 12 Stat. 178; id. 543, 551; Rev. Stat., sect. 2504.

Under the principles laid down in Arthur v. Morrison, Arthur v. Lahey, and Arthur v. Unkart (supra, pp. 108, 112, 118), the specific designation should prevail; and the judgment in favor of the plaintiff for the excess of duties paid by him was right, and must be affirmed.

Judgment affirmed.


text: Talk:Arthur v. Zimmerman/Opinion of the Court


text:
Arthur v. Stephant

ERROR to the Circuit Court of the United States for the Southern District of New York.

This was an action by A. Stephani & Co., to recover an alleged excess of duty paid upon certain chocolate imported by them from Liverpool, in 1873, and upon which the collector of the port of New York, holding it to be 'confectionery,' exacted a duty of fifty cents per pound ad valorem, under the first section of the act of June 30, 1864 (13 Stat. 202). The importers claimed it to be dutiable as 'chocolate,' under the first section of the act of June 6, 1872 (17 id. 231), which imposes a duty of five cents per pound.

The case was tried by the court below, without the intervention of a jury; and, by an agreed statement of facts, it was admitted that the chocolate was in boxes containing thirty-six little bricks, done up in separate papers, each box weighing about half a pound; and that the chocolate, being such as is ordinarily sold by confectioners as confectionery, and by the box or package, was valued at over thirty cents per pound. It was also admitted that chocolate comes in other forms.

Judgment having been rendered in favor of the plaintiffs, the collector brought the case here.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. Edward Hartley, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Stephant


text: Talk:Arthur v. Stephant

title: Talk:Arthur v. Stephant


text:
Arthur v. Stephant/Opinion of the Court

The first section of the act of June 30, 1864, imposes 'on all confectionery not otherwise provided for, made wholly or in part of sugar, valued at thirty cents per pound or less, a duty of fifteen cents per pound; on all confectionery valued above thirty cents per pound, or when sold by the box, package, or otherwise than by the pound, fifty per cent ad valorem.' 13 Stat. 202.

The act of June 6, 1872, imposes a duty of five cents per pound 'on chocolate.' 17 id. 231.

The article in question was chocolate simply, but presented in a form in which it was ordinarily sold as confectionery. Was it dutiable as confectionery, or as chocolate?

The case differs from those already decided, in this, that the last act expressing the legislative will is that which imposes the lower rate of duty. It is like the others, in this, that it presents the question whether the articles are dutiable under general terms which may embrace them, or under that specific language which can be applied to nothing else. That the latter is the rule by which the duty is fixed is too well settled to require argument. Reiche v. Smythe, 13 Wall. 162; Homer v. The Collector, 1 id. 486; Movius v. Arthur, 95 U.S. 144.

Should it be admitted, therefore, that chocolate is composed in part of the same substances that enter into the composition of ordinary confectionery, it must, nevertheless, stand upon the customs list as the distinct article so often described in the acts of Congress by its specific name.

As early as 1792, chocolate, eo nomine, was subjected to a duty of three cents per pound. 1 Stat. 259.

In 1816, the same duty was again imposed upon it. 3 id. 311.

In 1824, a duty of four cents per pound was imposed upon it by name. 4 id. 28.

In the Revised Statutes, it is subject to a duty of five cents per pound. Rev. Stat. p. 478.

Contemporaneously and side by side, all the way down, the statutes provide for different rates of duty on the varieties of sugar and on confectionery, as well as on chocolate. Confectionery and chocolate are uniformly recognized as being different articles for the purpose of duties.

In the first paragraph of sect. 8 of the tariff act of 1842 (5 Stat. 558), sugar of various kinds, comfits, sweetmeats, and confectionery are subject to a duty of twenty-five per cent ad valorem; in the second paragraph of the same section, a duty four cents per pound is imposed upon 'chocolate.'

In the tariff act of 1846 (9 id. 44), 'comfits and sweetmeats' are dutiable at forty per cent; 'confectionery' of all kinds, at thirty per cent; and 'chocolate,' at twenty per cent.

In the act of 1861, 'comfits and sweetmeats' are placed at thirty per cent; 'confectionery of all kinds, not otherwise provided for,' at thirty per cent; 'chocolate,' at twenty per cent. 12 id. 180, 189.

By the act of July, 1870, chocolate is again made dutiable by name (16 id. 262); and again by the act of June, 1872 (17 id. 231).

In the Revised Statutes, 'sugar-candy and confectionery' are provided for, as are 'comfits, sweetmeats, and preserved fruits;' and, separately, 'chocolate,' at a different rate of duty. Rev. Stat. pp. 472, 478.

It is quite evident that Congress has at all times intended to preserve the distinction between these articles, and that the circuit judge decided correctly when he held that chocolate, although in the form and of the character described, was not dutiable as 'confectionery' under the act of 1864.

Judgment affirmed.

title: Arthur v. Stephant/Opinion of the Court


text: Talk:Arthur v. Stephant/Opinion of the Court


text:
Arthur v. Sussfield

ERROR to the Circuit Court of the United States for the Southern District of New York.

In 1872 and 1873, the plaintiffs, Sussfield, Lorsch, & Co., imported, at New York, a quantity of spectacles made of glass and steel.

Arthur, the collector, held them to be subject to a duty of forty-five per cent, under the third section of the act of June 30, 1864, which reads, 'On all manufactures of steel, or of which steel shall be a component part, not otherwise provided for, forty-five per cent' (13 Stat. 205), and exacted the duty at that rate.

The importers insisted that the duties were to be chargeable under the ninth section of the same act, which reads, 'On pebles for spectacles and all manufactures of glass, or of which glass shall be a component material, not otherwise provided for, forty per cent.' Id. 211.

Having paid the duty under protest, they brought suit to recover the alleged excess. The court below held the goods to be dutiable under the ninth section of the act of 1864. There was a verdict and judgment for the plaintiffs. The collector then brought the case here.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. Edward Hartley, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Sussfield


text: Talk:Arthur v. Sussfield

title: Talk:Arthur v. Sussfield


text:
Arthur v. Sussfield/Opinion of the Court

The question in this case is as to the proper duty to be imposed.

On the part of the government, it is now insisted that the third and the ninth sections of the act of June 30, 1864, give a partial description of the articles taxed; but that neither is so complete as to exclude the other, and therefore neither description can be applicable: hence it is argued that spectacles must be treated as a non-enumerated article, and that equally resembling two enumerated articles,-to wit, those of which steel is a component and those of which glass is a component,-they must, under the similitude clause of the act of Aug. 30, 1842 (5 Stat. 565), pay the highest rate of duty chargeable on either of the articles they resemble.

We are not able to assent to this course of reasoning. The similitude act applies only to non-enumerated articles. These goods are enumerated. They fall under the description or enumeration of both sections, and if either were absent, the description under the other would be sufficient. Thus, if it were not for that provision of the act describing 'manufactures of which steel is a component part,' there could be no difficulty in classifying them under that clause which describes 'manufactures of which glass shall be a component material;' and if it were not for the provision describing 'manufactures of which glass shall be a component material,' there could be no difficulty in classifying them under that clause which describes 'manufactures of which steel is a component part.'

The difficulty, it is said, may be solved in this way: 1st, that in the case of repugnant statutes, the later statute, or, in the case of repugnant provisions of the same statute, the later portion of the act, is deemed to be the last expression of the legislative will; and, 2d, that when the same article is twice enumerated, the lower rate of duty must prevail. To these points many authorities are cited. Potter's Dwarris on Statutes, pp. 170, 744; Powers v. Barney, 5 Blatchf. 202; 2 Taunt. 109; 2 B. & Ad. 818; United States v. Johnson, 17 Wall. 504; United States v. Ulman, 5 Ben. 553.

Without passing upon this point, we prefer to place our opinion upon the connection in which the different articles are found in the statute. Neither in the general use of language nor in commercial designation would it be understood that the unconnected expression, 'of which steel is a component part,' was intended to embrace spectacles. Steel may or may not form a part of the spectacles. The article will be as perfect without steel as with it. On the other hand, the terms 'pebbles for spectacles and all manufactures of which glass shall be a component material,' naturally connects the glass manufacture with the spectacles. There could be no spectacles without them. The colorless crystals in spectacles, termed pebbles, and the manufactures of glass used in spectacles, embrace the same idea; to wit, of pebbles or glass for spectacles. The section, we think, was intended to impose a duty of forty per cent on those substances used in the manufacture of spectacles to aid the sight, and which are therein described as pebbles or as glass. The use of spectacles is to aid the sight. The pebbles and the glass are the materials which effect that purpose. The steel is incidental or auxiliary merely, and Congress intended to embrace spectacles under this appropriate designation.

Judgment affirmed.


text: Talk:Arthur v. Sussfield/Opinion of the Court


text:
Murphy v. Arnson

ERROR to the Circuit Court of the United States for the Southern District of New York.

In March, 1871, Arnson & Wilzinski, the plaintiffs below, imported into New York a quantity of nitro-benzole, which is obtained by the chemical action of its constituents-benzole and nitric acid-upon each other. It is then refined and cleaned by distillation, and sole as nitro-benzole and as 'oil of myrbane' to druggists, soap manufacturers, 'and to the trade generally.' The defence introduced testimony that this is a well-known article of commerce, commercially known as oil of myrbane, used for perfuming and flavoring, and also commercially known as 'artificial oil of bitter almonds,' as well as by its other names; and that, in fact, it resembles essential oil in the uses to which it is put, as a marketable commodity, more than any thing else, and is used as a substitute for an essential oil, being cheaper. Rebutting testimony was put in by the plaintiffs below.

Murphy, the collector, exacted duty upon this nitro-benzole as upon an 'essential oil not otherwise provided for,' fifty per cent, under the fifth section of the act of July 14, 1862 (12 Stat. 548), whereas the importers contended that it was a non-enumerated article, and that forty cents a gallon was the proper duty, being the highest rate payable on either constituent, agreeably to the similitude clause of the act of Aug. 30, 1842, sect. 20 (5 Stat. 565).

Upon this evidence the court directed a verdict for the plaintiffs. Judgment having been rendered thereon, the collector brought the case here.

Mr. Assistant-Attorney-General Smith, for the plaintiff in error.

Mr. William Stanley and Mr. Stephen G. Clarke, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Murphy v. Arnson


text: Talk:Murphy v. Arnson

title: Talk:Murphy v. Arnson


text:
Murphy v. Arnson/Opinion of the Court

It was an evident error on the part of the collector to tax 'nitro-benzole' as an essential oil. There was no evidence that such was its character; but it appeared at the trial, by uncontradicted evidence, and was in fact conceded, that it was made by mixing benzole and nitric acid; that these substances combined by reason of their chemical affinity, and nitro-benzole was the result. Not being enumerated as a dutiable article, it falls under the twentieth section of the act of Aug. 30, 1842 (5 Stat. 565), called the similitude clause.

'And be it further enacted, that there shall be levied, collected, and paid, on each and every non-enumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any enumerated article chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before mentioned; and if any non-enumerated article equally resembles two or more enumerated articles on which different rates of duty are chargeable, there shall be levied, collected, and paid on such non-enumerated article the same rate of duty as is chargeable on the article which it resembles paying the highest duty; and on all articles manufactured from two or more materials the duty shall be assessed at the highest rates at which any of its component parts may be chargeable.'

The government now contends that the duty assessed by the collector was the proper one, for the reason that nitro-benzole resembles essential oil in the use to which it is applied, and should be subject to the same duty with that article; to wit, fifty per cent. There is no pretence that it resembled essential oil in material quality or texture. Although made of two fluids, there is no evidence that the compound resulting bore any similitude in material quality or texture to either of its original elements, nor is there any thing in the nature of the subject to require us to believe that such was the fact.

The evidence of the use to which it might be applied scarcely warrants us in holding that there was a similitude in that respect. The case states that the defendant gave evidence tending to show that the article 'resembles essential oil in the uses to which it is put, as a marketable commodity, more than any thing else.' This is all that was shown to make applicable the clause in question, and we think it falls short of the requisition of the statute, that it must 'bear a similitude in the use to which it may be applied.' It may resemble an essential oil in this respect more than any thing else, and yet bear no resemblance. It does not follow because it resembles nothing else that it resembles essential oil; or because it cannot be applied to any other use, that it may be applied to the use to which essential oil is applied.

Again, it may be doubted whether proof that 'the use to which it may be put as a marketable commodity' resembles essential oil meets the meaning of the provision, 'bears a similitude in the use to which it may be applied.' The former carries the idea of its adaptability to sale as a substitute for essential oil, while the statute plainly refers to its employment, or its effect in producing results.

But the compound falls plainly within the words of the last clause of the act we have cited; to wit, 'and on all articles manufactured from two or more materials the duty shall be assessed at the highest rates at which any of its component parts may be chargeable.'

We see no more reason to doubt that nitro-benzole is a manufacture of or from benzole and nitric acid, than that glass is a manufacture from sand and fixed alkalies. This is in harmony with the decision in Meyer et al. v. Arthur (91 U.S. 570), where it was held that the expression, 'manufactures of metals of which either of them is the component part of chief value,' did not embrace a case where the metals had lost their form and character as metals, and become the chemical ingredients of new forms. White lead, nitrate of lead, oxide of zinc, and dry and orange mineral, were held not to be manufactures of metals within the words of the statute. Mr. Justice Bradley says: 'When the act speaks of 'manufactures of metals,' it obviously refers to manufactured articles in which metals form a component part. When we speak of manufactures of wood, of leather, or of iron, we refer to articles that have those substances especially for their component parts, and not to articles in which they have lost their form entirely, and have become the chemical ingredients of new forms. The qualification which is added to the phrase 'manufactures of metals'-namely, 'manufactures of metals of which either of them' (that is, either of the metals) 'is the component part of chief value'-corroborates this view.'

In the present case, the original elements are fluids, and the manipulation and the materials blending with each form a union, which is as much a manufacture within the meaning of the statute as where the materials are mechanically joined together. Bouvier thus defines the word 'manufacture:'--

'The word is used in the English and American patent laws. It includes machinery which is to be used and is not the object of sale, and substances (such, for example, as medicines) formed by chemical processes when the vendible substance is the thing produced, and that which operates preserves no permanent form.' 'It includes any new combination of old materials constituting a new result or production, in the form of a vendible article, not being machinery. The contriver of a new commodity which is not properly a machine or a composition of matter can obtain a patent therefor as for a new manufacture. And, although it might properly be regarded as a machine or a composition of matter, yet if the claim to novelty rests on neither of these grounds, and if it constitutes an essentially new merchantable commodity, it may be patented as a new manufacture.'

The various nostrums vended all over the land, with or without the certificate of the Patent Office, are manufactures. Beer may well be said to be manufactured from malt and other ingredients, whiskey from corn, or cider from apples. The fact that the identity of the original article or articles is lost, and that a new form or a new character is assumed, is not material in determining whether, within the popular idea, as embodied in the customs act, the article in question is a manufacture from its original elements.

We have no doubt that nitro-benzole is a manufacture from benzole and nitric acid, falling within the twentieth section of the act of 1842, and that the duty was rightly fixed by the court below.

Judgment affirmed.

title: Murphy v. Arnson/Opinion of the Court


text: Talk:Murphy v. Arnson/Opinion of the Court


text:
Arthur v. Davies

ERROR to the Circuit Court of the United States for the Southern District of New York.

In 1873, Davies & Co. imported into the port of New York certain merchandise, on which the collector imposed and collected a duty of fifty per cent, under the eighth section of the act of July 14, 1862. 12 Stat. 552. The importers insisted that they were liable only to a duty of thirty-five per cent, under the twenty-second section of the act of March 2, 1861 (id. 191), and the thirteenth section of the act of July 14, 1862 (id. 556).

A reduction, under the act of June 6, 1872 (17 id. 231), was allowed.

It was admitted at the trial of the suit brought by Davies & Co. against the collector that the goods were,--

1. Suspenders or braces manufactured of rubber, cotton, and silk; cotton being the component material of chief value.

2. Suspenders or braces manufactured of rubber, cotton, and silk; cotton being the component material of chief value, and the silk, being a few threads, only used for purposes of ornamentation.

It also appeared that they were commercially known as suspenders or braces, and that these terms are synonymous.

Judgment having been rendered for the plaintiffs, the collector sued out this writ of error.

The Solicitor-General for the plaintiff in error.

Mr. Edward Hartley, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Davies


text: Talk:Arthur v. Davies

title: Talk:Arthur v. Davies


text:
Arthur v. Davies/Opinion of the Court

The twenty-second section of the act of March 2, 1861 (12 Stat. 191), imposed a duty of thirty per cent on 'braces, suspenders, webbing, or other fabrics, composed wholly or in part of india-rubber, not otherwise provided for.'

The eighth section of the act of July 14, 1862 (id. 552), imposes the following duty: 'On manufactures of india-rubber and silk, or of india-rubber and silk and other materials, fifty per cent ad valorem.'

The thirteenth section imposes: 'In addition to the duties heretofore imposed by law on braces, suspenders, webbing, or other fabrics, composed wholly or in part of india-rubber, not otherwise provided for, five per cent ad valorem.' Id. 555, 556.

In Schedule C of the act of July 30, 1846 (9 id. 44), the same provision is made, in these words: 'Thirty per cent ad valorem on braces, suspenders, webbing, or other fabrics, composed wholly or in part of india-rubber, not otherwise provided for.'

The same designation and the same duty are found in the seventh subdivision of sect. 5 of the act of Aug. 30, 1842, where they do not exceed two dollars per dozen in value. 5 id. 555.

It thus appears that for thirty years prior to this importation, and in four different statutes, braces and suspenders, composed wholly or in part of india-rubber, had been a subject of duty, eo nomine; and in the same statute where a duty of fifty per cent is imposed on other manufactures of which rubber is a component material, which it is now sought to apply to braces and suspenders, braces and suspenders containing that material are, by name, charged with an additional duty of five per cent.

It is not material that in one kind of suspenders cotton was the component of chief value, and that each contained some proportion of silk. If they are technically and commercially braces and suspenders composed in part of india-rubber, they take their dutiable character from that source, and not from the fact that they would otherwise fall under the general designation applicable to other subjects.

Under the principles of the cases already decided, it is clear that excessive duties were exacted, and that the rulings of the judge on the trial were correct.

Judgment affirmed.

title: Arthur v. Davies/Opinion of the Court


text: Talk:Arthur v. Davies/Opinion of the Court


text:
Arthur v. Homer

ERROR to the Circuit Court of the United States for the Southern District of New York.

In 1873, Homer & Co. imported into the port of New York certain goods, of which linen was the basis, upon which the collector imposed and collected duties at the rate of forty per cent, under the seventh section of the act of June 30, 1864 (13 Stat. 209). The importers insisted that they were dutiable at thirty-five per cent only, under the twenty-second section of the act of March 2, 1861 (12 id. 192), and brought this action to recover the alleged excess of duties.

The plaintiffs introduced testimony tending to show that the goods were dress patterns, or patterns for dresses, designed for ladies' wear, each piece, or the contents of each carton, comprising the material for a garment, either as an overskirt (polonaise) or dress (robe a jour), although not made up. The size of these patterns or articles varied from about eight to twelve yards. About the edge, or above it, and arranged so as to form an appropriate ornamentation to the article when made up for wear, there was worked, sometimes in cotton thread and sometimes in linen thread, more or less embroidery. The amount of this embroidery and its elaboration was a substantial and influential element in the cost or value of the article.

The component material of chief value in the articles in question was flax or linen, as embroidered; and in the condition in which they were imported,-packed in cartons and boxes,-the value of the goods exceeded thirty cents per square yard.

The testimony further showed that the general descriptive and commercial names of the articles in question were polonaise and robe, more particularly described as linen embroidered robes and linen embroidered polonaise, &c.

The court below directed the jury to find a verdict for the plaintiffs; and from the judgment entered upon such verdict this writ of error is brought.

The Solicitor-General for the plaintiff in error.

Mr. Edward Hartley, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Homer


text: Talk:Arthur v. Homer

title: Talk:Arthur v. Homer


text:
Arthur v. Homer/Opinion of the Court

Sect. 14 of the act of March 2, 1861 (12 Stat. 185, 186), imposes duties in the following words, viz.:--

'On all brown or bleached linens, ducks, canvas, paddings, cotbottoms, burlaps, drills, coatings, brown hollands, blay linens, damasks, diapers, crash, huckabacks, handkerchiefs, lawns, or other manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, being of the value of thirty cents and under per square yard, twenty-five per cent ad valorem; valued above thirty cents per square yard, thirty per cent ad valorem; on flax or linen threads, twine, and pack-thread, and all other manufactures of flax or of which flax shall be the component material of chief value, and not otherwise provided for, thirty per cent ad valorem.'

The twenty-second section (12 Stat. 192) imposes a duty of thirty per cent on 'manufactures of cotton, linen, silk, wool, or worsted, if embroidered or tamboured in the loom, or otherwise, by machinery or with the needle, or other process not otherwise provided for.'

The tenth and thirteenth sections of the act of July 14, 1862 (12 Stat. 554-557), impose five per cent additional duty on each of the above enumerations totidem verbis.

The seventh section of the act of June 30, 1864 (13 Stat. 209), imposes duties as follows:--

'On brown and bleached linens, ducks, canvas, paddings, cotton bottoms, burlaps, diapers, crash, huckabacks, handkerchiefs, lawns, or other manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, not otherwise provided for, valued at thirty cents or less per square yard, thirty-five per cent ad valorem; valued at above thirty cents per square yard, forty per cent ''ad valorem. On flax or linen yarns for carpets, not exceeding number eight Lea, and valued at twenty-four cents or less per pound, thirty per cent ad valorem. On flax or linen yarns valued at above twenty-four cents per pound, thirty-five per cent ad valorem''. On flax or linen thread, twine, and packthread, and all other manufactures of flax, or of which flax shall be the component material of chief value, not otherwise provided for, forty per cent ad valorem.'

The twenty-second section was as follows (id. 216):--

'And provided further, that the duties upon all goods, wares, and merchandise imported from foreign countries, not provided for in this act, shall be and remain as they were according to existing laws prior to the 29th of April, 1864.'

It will be seen by this juxtaposition, that sect. 14 of the act of 1861, and sect. 7 of the act of 1864, are, in their first and general paragraphs, nearly identical. Except as to that portion of the act of 1864, describing linen yarns, which is placed above in Italics, and the rate of the duty provided, they are nearly the same, word for word. In the paragraphs following they differ. The act of 1861 contains the provision that 'manufactures of cotton, linen, silk, wool, or worsted, if embroidered or tamboured, in the loom or otherwise, by machinery or with the needle, or other process not otherwise provided for,' shall be subject to a duty of thirty per cent.

The act of 1864 omits this provision, but contains the following clause:--

'Provided further, that the duties upon all goods, wares, and merchandise imported from foreign countries, not provided for in this act, shall be and remain as they were according to existing laws prior to the 29th of April, 1864.'

It seems impossible to resist the conclusion that Congress intended by the act of 1864 to revise the duties on brown and bleached linens generally, increasing them from twenty-five and thirty per cent, as they were by the act of 1861, to thirty-five and forty per cent, but on embroidered or tamboured manufactures of linen the duties were intended to remain as they were prior to the 29th of April, 1864.

To induce a repeal of a statute by the implication of inconsistency with a later statute, there must be such a positive repugnancy between the two statutes that they cannot stand together. McCool v. Smith, 1 Black, 459; Wood v. United States, 16 Pet. 342; United States v. Tynen, 11 Wall. 88.

In the present case, the statutes are in perfect harmony, and there is no room for the theory of repeal by implication.

The test of the rate of duty we are considering is that of embroidery, or not. The rate of duty upon plain linen goods is reconsidered in the act of 1864, and is fixed at thirty-five per cent where the goods are valued at thirty cents or less per square yard, and at forty per cent where they are valued above that sum. This is a higher rate of duty than that imposed by the act of 1861; and, if there were no repealing clauses, then it would necessarily operate as a repeal of the old duty, by its repugnancy. The rate of duty on embroidered goods is not reconsidered in the act of 1864. This class of goods is not there mentioned, but falls under the description of goods 'not provided for in this act,' which, it is declared, shall remain as they were on the 29th of April, 1864. They remain, therefore, subject to the duty imposed by the act of March, 1861.

That this is a correct interpretation of these statutes is shown by the later provision of the Revised Statutes of 1874, wherein the duties are set forth in precise accordance with the construction we have here given.

1st, At pp. 465, 466, a duty is imposed on brown and bleached linens, ducks, canvas, &c., of thirty-five per cent where the value does not exceed thirty cents per square yard, and of forty per cent where the value is greater.

2d, Flax or linen yarns for carpets are dutiable at thirty-five or forty per cent, according to their value. These duties are as provided in the act of 1864, and the marginal reference is to that act.

3d, At p. 479 is the provision, 'Embroidery, manufactures of cotton, linen, or silk, if embroidered or tamboured, in the loom or otherwise, by machinery or with the needle, or other process not otherwise provided for, thirty-five per cent ad valorem. Articles embroidered with gold or silver or other metals, thirty-five per cent ad valorem.'

The rulings at the trial were all upon this theory of the laws imposing duties, and were correct.

Judgment affirmed.

title: Arthur v. Homer/Opinion of the Court


text: Talk:Arthur v. Homer/Opinion of the Court


text:
Arthur v. Herman

ERROR to the Circuit Court of the United States for the Southern District of New York.

In the year 1872, Herman & Co., the plaintiffs, imported from England certain cheap goods, the warp of which was made of cotton, and the filling or woof of cattle hair. These were the only component parts of the goods.

The collector imposed a duty of thirty-five per cent on the goods, under the act of June 30, 1864. The importers protested against this charge as excessive, insisting that, under the second section of the act of June 6, 1872 (17 Stat. 231), but ninety per cent of thirty-five per cent could be legally exacted as the duty. Judgment was rendered in favor of the plaintiffs, and the defendant brought the case here.

The Solicitor-General for the plaintiff in error

Mr. Stephen G. Clarke, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Herman


text: Talk:Arthur v. Herman

title: Talk:Arthur v. Herman


text:
Arthur v. Herman/Opinion of the Court

The last paragraph of sect. 6 of the act of 1864 is as follows, viz.: 'On cotton braids, insertings, lace trimming, or bobbinet, and all other manufactures of cotton not otherwise provided for, thirty-five per cent ad valorem.'

The goods in question were manufactured from two materials, of which cotton was one, and may, therefore, in general terms, be said to be manufactured of cotton, and they are not provided for by any specific enumeration in the act of 1864. They fall under the general clause of this act, just quoted.

Impliedly admitting the application of this provision to their goods, the importers, by their protest, insist 'that the merchandise aforesaid is only liable under existing laws to a duty of ninety per cent of thirty-five per cent ad valorem, under the second section of the act of June 6, 1872, as being merchandise composed of animal hair and cotton.'

On turning to the act of 1872, we find that the ninety per cent provision is made applicable to 'all manufactures of cotton, of which cotton is the component part of chief value.' The article in question is dutiable as a manufacture of cotton, that material being one of its components. But the record expressly states that cotton is not the component part of chief value. It is plain that this case does not fall within the terms of the clause.

The argument of the importers, if we appreciate it, is this: The similitude clause of the act of Aug. 30, 1842 (5 Stat. 565, sect. 20), provides that there shall be collected on every nonenumerated article,. . . manufactured from two or more materials, the highest duty assessable upon any of its component parts. The article in question is manufactured from cow hair and cotton; of these the cotton is assessed at a higher rate of duty than the hair, and, therefore, the article is assessed as a manufacture of cotton, and hence it is insisted, under the act of 1872, as a manufacture of cotton it is entitled to the deduction claimed.

The defect in this argument is apparent. The article in question does not fall within the terms of either part of the clause of the act of 1872, 'all manufactures of cotton, of which cotton is the component part of chief value.' The first part gives the deduction to manufactures of cotton, which might be understood to mean those which are wholly of cotton. If it also includes a manufacture of which cotton is one of the components only, the cotton must be the component of chief value. It certainly was not intended to embrace a composite article of which cotton was the chief component, and a composite article of which it was not the chief component. In any aspect, it does not embrace the goods in question.

We think the judge erred in ruling in favor of the importer, and that there must be a new trial.

Judgment reversed and new trial ordered.

title: Arthur v. Herman/Opinion of the Court


text: Talk:Arthur v. Herman/Opinion of the Court


text:
Arthur v. Rheims

ERROR to the Circuit Court of the United States for the Southern District of New York.

In 1874, Rheims, the plaintiff below, imported into the port of New York a quantity of artificial flowers, composed of iron, paper, wire, and cotton, and on which Arthur, the collector, imposed, under the twelfth section of the act of June 30, 1864 (13 Stat. 213), a duty of fifty per cent ad valorem.

Rheims claimed that, under the second section of the act of June 6, 1872 (17 Stat. 231), the merchandise was liable only to ninety per cent of the duty imposed by the act of June 30, 1864; but having, under protest, paid the duty imposed by the collector, brought this suit to recover the excess.

Under the instructions of the court below, the jury found that the importer was entitled to the deduction. From the judgment rendered upon the verdict, this writ of error is brought.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. Stephen G. Clarke, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Rheims


text: Talk:Arthur v. Rheims

title: Talk:Arthur v. Rheims


text:
Arthur v. Rheims/Opinion of the Court

The question for decision in this case is, whether the defendant in error is entitled to the deduction of ten per cent allowed by the act of June 6, 1872.

Under the act of 1864, the duty of fifty per cent was imposed on 'artificial and ornamental feathers and flowers, or parts thereof, of whatever material composed, not otherwise provided for, beads and bead ornaments.' 13 Stat. 213. As no other provision was made, the goods were presumably subject to this duty.

The act of June 6, 1872 (17 id. 231), provides, in its second section, as follows:--

'That on and after the 1st of August, 1872, in lieu of the duties imposed by law on the articles in this section enumerated, there shall be levied, collected, and paid on the goods, wares, and merchandise in this section enumerated and provided for, imported from foreign countries, ninety per cent of the several duties and rates of duties now imposed by law on said articles severally, it being the intent of this section to reduce existing duties on such articles ten per cent of such duties; that is to say, on all manufactures of cotton of which cotton is the component part of chief value;. . . on all iron and steel, and all manufactures of iron and steel of which shch metals, or either of them, shall be the component part of chief value, excepting cotton machinery.'

Many other articles are named.

The general words of the act of 1872, no doubt, are sufficiently comprehensive to embrace the case before us. Artificial flowers are a manufacture of which cotton is the chief component, and, were that all, would be entitled to the deduction asked for.

But it is true, also, that they are dutiable under the law of 1864, not as a manufacture of cotton, but specifically, eo nomine, as artificial flowers. It has been held in many cases,-as that of 'almonds and dried fruits,' the 'canary birds,' and at the present term, in the case of 'thread laces' and of 'chocolate,'-that, when an article is intended to be made dutiable by its specific designation, it will not be affected by the general words of the same or another statute, which would otherwise embrace it.

This rule applies both to statutes reducing and to statutes increasing duties. Giving it such application here, we must hold that 'artificial flowers' are not entitled to be classed as a manufacture of cotton which is entitled to the reduction provided for by act of 1872.

The ruling in this respect was erroneous, and the judgment must be reversed; and it is

title: Arthur v. Rheims/Opinion of the Court


text: Talk:Arthur v. Rheims/Opinion of the Court


text:
Arthur v. Goddard

ERROR to the Circuit Court of the United States for the Southern District of New York.

In 1874, Goddard & Brother imported certain goods, of which the invoice, after giving the details of weight, &c., was as follows, viz.:--

Bought Fr's 8,670.25

Discount for cash on gross amount, two per cent, 8,766.00 175.30

Fr's 8,494.95

Terms cash. If not paid, interest to be added at the rate of six per cent.

The importers entered the goods at the net price stated in the invoice,-francs, 8,494.95,-and declared on the entry as follows: 'Cash not paid on these goods, but are passed to our account, and are subject to interest at six per cent per annum.'

The case finds, as matter of fact, that 8,494.95 francs was the actual market value of the goods at the time of their exportation, in the principal market of the country from which they were exported, and that the purchase by the importers was at the figures named.

The appraisers disallowed the discount of two per cent, on the ground that the importers stated in the entry that the cash was not paid. The collector thereupon fixed the value of the goods at 8,670.25 francs; and the duty charged upon that valuation having been paid under protest, the importers brought suit to recover the excess.

Judgment was rendered in their favor, and the collector brought the case here.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. William G. Choate, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Goddard


text: Talk:Arthur v. Goddard

title: Talk:Arthur v. Goddard


text:
Arthur v. Goddard/Opinion of the Court

The appraisers seem to have acted under the provision of the seventh section of the act of March 3, 1865 (13 Stat. 494), which declares 'that the duty shall not be assessed upon any amount less than the invoice or entered value.'

The actual value has been stated at 8,494.95 francs, and such was also the 'invoice value.' The entered or invoiced value spoken of in the statute means the value as it is stated in or upon the invoice. That value was, francs, 8,494.95. The value means the cash value. The price at thirty days' credit might be different, and the difference would probably be greatly increased by a credit of six months or a year, but the value or cost would still be the same. The difference would be chargeable to the credit, and not to a difference in the value of the goods. That the price was to bear interest at six per cent until paid for, or at sixty per cent, had no influence upon the question of their value. We think it quite clear that the net price is stated in this invoice to be the value of the goods; viz., francs, 8,494.95.

Ballard et al. v. Thomas (19 How. 382), is cited as an authority to the contrary. We do not so consider it. The judge at the trial of that case charged the jury as follows: 'It being admitted that the duties were levied on the prices at which the iron was charged in the invoice, they are lawfully exacted;. . . that the entry in the invoice, that the plaintiff would be entitled to a deduction for prompt payment, could not affect the amount of duty chargeable.'

In delivering the opinion of affirmance in this court, Mr. Justice Nelson said: 'In respect to the deduction from the price on account of prompt payment, we think the fact does not vary or affect the price of the article as stated in the invoice. It relates simply to the mode of payment, which may, if observed, operate as a satisfaction of the price to be paid, by the acceptance of a less sum.' This is quite different from a case where the court is asked to fix the duties upon a different value from that stated in the invoice.

It is said, again, that the valuation of the appraisers is conclusive.

The statute already cited provides that it shall be the duty of the collector to cause the actual market value or wholesale price of the goods in the principal market of the county from which they are exported to be appraised, 'and such appraised value shall be considered the value upon which the duty shall be assessed.' 13 Stat. 493.

In this case, the appraisers did not profess to appraise or ascertain the market value of the goods. They simply gave a construction to the invoice; they decided its legal effect to be that 8,670.25 francs is there declared to be the market value of the goods. They held as a legal proposition, that, in fixing the value, the discount of two per cent should not be allowed; and, as a result from this, that 8,670.25 francs, and not 8,494.95 francs, was the value.

Such is the effect of their return; and the view is strengthened, if strength is needed, by the statement of the case, that 8,494.95 francs was, in fact, the market value of the goods.

Judgment affirmed.

title: Arthur v. Goddard/Opinion of the Court


text: Talk:Arthur v. Goddard/Opinion of the Court


text:
Davies v. Arthur

ERROR to the Circuit Court of the United States for the Southern District of New York.

This is an action by John M. Davies & Co. to recover certain duties claimed by them to have been illegally exacted by Arthur, the defendant, as collector of the port of New York.

In April, 1872, they imported from Liverpool certain merchandise, a portion of which is described on the invoice as 'Ducape Eglington ties,' which are manufactured of silk, and used and known as neckties. Another portion of the merchandise is described as 'twill silk cut up.' The appraiser, in his report to the collector, returned the ties as silk scarfs, and the twill silk as silk in pieces; whereupon the collector imposed a duty of sixty per cent ad valorem upon each.

The importers thereupon protested in writing against the assessment, upon the ground that the merchandise 'should only pay duty, being articles worn by 'men, women, or children,' &c., and 'wearing-apparel,' under sect. 22, act of March 2, 1861, and sect. 13, act of July 14, 1862, at thirty-five per cent ad valorem. 'They are neither 'scarfs' nor ready-made clothing in fact, nor as known in trade and commerce.'

On the same day, they appealed to the Secretary of the Treasury, who affirmed the action of the collector, and they thereupon brought this suit.

It having been admitted by both parties at the trial that the goods were, under the concluding clause of the eighth section of the act of June 30, 1864 (13 Stat. 210), subject to a duty of fifty per cent ad valorem, as manufactures of silk not otherwise provided for, the question submitted to the court, which tried the case without a jury, was whether, under their protest, the plaintiffs could recover the difference between the amount of duties payable on said 'Ducape Eglington ties,' at the rate of fifty per cent ad valorem, and the amount claimed and exacted by the defendant on the same, at the rate of sixty per cent ad valorem.

There was a judgment for the defendant, whereupon the plaintiffs brought the case here.

Mr. Edward Hartley for the plaintiffs in error.

The Solicitor-General, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Davies v. Arthur


text: Talk:Davies v. Arthur

title: Talk:Davies v. Arthur


text:
Davies v. Arthur/Opinion of the Court

Importers who have paid duties under protest in writing may, if the duties were illegally exacted and the protest sets forth, distinctly and specifically, the grounds of the objection to the payment, maintain an action of assumpsit against the collector to recover back the amount so paid. 5 Stat. 727.

Persons importing merchandise are required to make their protests distinct and specific, in order to apprise the collector of the nature of the objection, before it is too late to remove it, or to modify the exaction, and that the proper officers of the treasury may know what they have to meet, in case they decide to exact the duties as estimated, notwithstanding the objection, and to expose the United States to the risk of litigation. Curtis's Administratrix v. Fiedler, 2 Black, 461.

Payment of the duties having been made under protest in writing, the importers brought assumpsit against the collector to recover back the amount which they allege was illegally exacted. Service was made; and both parties appeared, and, having waived a trial by jury, submitted the case to the court upon an agreed statement of facts. Hearing was had; and the court rendered judgment in favor of the defendant, and the plaintiffs sued out the present writ of error.

Goods were imported by the plaintiffs from Liverpool into the port of New York, a portion of which were described in the invoice as Ducape Eglington ties, which are manufactures of silk, and are used and known as neckties, and were valued in the invoice at a net valuation equivalent to $696 in gold coin. Another portion of the merchandise is described in the invoice as twill silk cut up, and is valued in the invoice at a net valuation equivalent to $234,13, gold. Both parcels were part of the merchandise described in the invoice as the contents of a case marked and numbered; and the statement is, that they were entered for consumption by the plaintiffs under the dutiable rate of sixty per cent ad valorem, other portions of the merchandise being placed in the entry respectively under the duti able rates of thirty, thirty-five, and fifty per cent ad valorem.

Sufficient appears to indicate that the goods were appraised as the agreed statement shows; that the local appraiser reported the neckties to the collector as silk scarfs, and the twill silk cut up as silk in pieces, and that both were subject to duty at the rate of sixty per cent ad valorem. Pursuant to that report, the collector liquidated the duties at that rate; and the plaintiffs paid that rate of duty on the neckties and the silk cut up, on the entered valuation of the same, as before explained. Custom duties are payable in gold; and the plaintiffs paid the amounts in that medium, and under protest in writing.

Subsequent to the passage of the act of the 3d of March, 1839, and before the passage of the act of the 26th of February, 1845, such a suit against a collector to recover back duties as having been illegally exacted could not be maintained, unless it was brought before the collector placed the money to the credit of the Treasurer of the United States. 4 Stat. 348; Cary v. Curtis, 3 How. 236.

Hardship and injustice resulted from that rule of decision; and the Congress, by the latter act, established a different rule, and provided to the effect that the importer may in such a case have such a remedy against the collector to recover back such duties, if he protested in writing at or before the payment of the duties, and set forth distinctly and specifically the grounds of his objections to the payment of the same. 5 Stat. 727.

Different forms of expression are employed in later enactments, but all which are applicable to the case before the court are, except as to time, substantially to the same effect. 13 id. 214, sect. 14.

What is required by that act in respect to the matter in question is that the importer, if dissatisfied with the decision of the collector, shall give notice in writing to him on each entry, setting forth therein, distinctly and specifically, the grounds of his objection thereto; which, certainly, is not different from what is required by the antecedent act. Nor is there any substantial difference in the construction given by the courts to the provision which contains that requirement. Instead of that, both acts referred to make it necessary that the protest shall be in writing; and the requirement is that the importer shall set forth, distinctly and specifically, the grounds of his objections to the payment of the liquidated duty.

Unless the protest is made in writing, and is signed by the claimant within ten days after the ascertainment and liquidation of the duties, setting forth distinctly and specifically the grounds of objection to the payment, no action of the kind against the collector can be maintained to recover back the duties as having been illegally exacted. Nor is it sufficient to object to the payment of any particular duty or amount of duty, and to protest in writing against it; but the claimant must do more, as is evident from the words of the act of Congress. He must set forth in his protest the grounds upon which he objects, distinctly and specifically, the reason being, as ruled by Chief Justice Taney, that the words of the act requiring the protest are too emphatic to be overlooked in the construction of the provision. Mason v. Kane, Taney's Dec. 177.

Mistakes and oversights will sometimes lead to irregular assessment, and the object of the requirement is to prevent a party, if he suffers the mistake or oversight to pass without notice, from taking advantage of it when it is too late to make the correction, and to compel him to disclose the grounds of his objection at the time when he makes his protest.

Protests of the kind must contain a distinct and clear specification of each substantive ground of objection to the payment of the duties. Technical precision is not required; but the objections must be so distinct and specific, as, when fairly construed, to show that the objection taken at the trial was at the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character to the end that he might ascertain the precise facts, and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated. Burgess v. Converse, 2 Curt. 223.

Two objects, says Judge Curtis, were intended to be accomplished by the provision in the act of Congress requiring such a protest: 1. To apprise the collector of the objections entertained by the importer, before it should be too late to remove them, if capable of being removed. 2. To hold the importer to the objections which, he then contemplated, and on which he really acted, and prevent him, or others in his behalf, from seeking out defects in the proceedings, after the business should be closed, by the payment of the money into the treasury. Warren v. Peaselee, 2 Curt. 235; Thomson v. Maxwell, 2 Blatchf. 392.

Merchandise entered as silk ties was imported by the plaintiffs into the port of New York, on which the defendant exacted an ad valorem duty of sixty per cent, upon the assumption that the articles were properly classified as silk scarfs. 13 Stat. 210.

Prompt objection to that classification was made by the plaintiffs; and they protested against the payment of the liquidated duty, on the ground that the goods imported and entered should be classified as 'articles of wearing-apparel worn by men, women, and children,' and that they were subject only to a duty of thirty-five per cent ad valorem, as prescribed by two prior tariff acts. 12 id. 186, 556.

Properly construed, their protest is that the articles should only pay duty at thirty-five per cent ad valorem, because the articles imported were wearing-apparel worn by men, women, and children, and were not scarfs, nor ready-made clothing in fact, nor as known in trade or commerce.

Litigation ensued in consequence of that difference of opinion between the importers and the officers of the government; but, when the case came to trial, both parties agreed that the merchandise imported should have been classified as a manufacture of silk not otherwise provided for, under the concluding clause of sect. 8 in the act of the 30th of June, 1864, and that it was dutiable at fifty per cent ad valorem, differing from the theory of each party as assumed at the time of the appraisement and liquidation of the duties. 13 id. 210. Still, the plaintiffs claimed to recover the difference of ten per cent between the proper duty and the duty exacted by the defendant as collector; and the court below held that they could not do so under their protest, as they could only be heard to allege the objections distinctly and specifically stated in their protest, pursuant to the requirement contained in the act of Congress. Judgment was given for the defendant; and the plaintiffs sued out the present writ of error, to correct the ruling of the Circuit Court.

Three points were ruled by the Circuit Court: 1. That, unless the protest set forth distinctly and specifically the ground of the objection to the amount claimed, it fails to meet the requirement of the act of Congress. 2. That the office of the protest is to point out to the officers of the customs the precise errors of fact or of law which render the exaction of the duty unauthorized. 3. That the plaintiffs are precluded from insisting that their importation was a manufacture of silk not otherwise provided for, and subject to a duty of fifty per cent instead of sixty, when, by their protest, they allege it to be wearing-apparel, &c., subject to a duty of thirty-five per cent.

Satisfactory reasons in support of these conclusions are given by the circuit judge, to which it will be sufficient to refer, without repetition. Davies v. Arthur, 13 Blatchf. 34; Norcross v. Greeley, 1 Curt. 120.

Apply these principles to the case before the court, and it is clear that there is no error in the record.

Judgment affirmed.

title: Davies v. Arthur/Opinion of the Court


text: Talk:Davies v. Arthur/Opinion of the Court


text:
Kohlsaat v. Murphy

ERROR to the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. Freeman J. Fithian for the plaintiffs in error.

The Solicitor-General, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Kohlsaat v. Murphy


text: Talk:Kohlsaat v. Murphy

title: Talk:Kohlsaat v. Murphy


text:
Kohlsaat v. Murphy/Opinion of the Court

Repeal by implication of revenue and collection laws, except when the prior laws have been subjected to a general statutory revision, are not favored in legal decision, unless it appear that the prior provision has been re-enacted in the new regulation, or that the later act is repugnant to the former; and the Revised Statutes provide in express terms that, whenever an act is repealed which repealed a former act, such former act shall not thereby be revived unless it shall be expressly so provided. Rev. Stat., sect. 12, p. 2.

Six invoices of merchandise were imported into the port of New York, designated as embroidered slipper-patterns, being the ordinary slipper-patterns made of cotton canvas cut into strips of the size and shape for slippers, more or less embroidered with worsted and silk. Due entry of the goods described in the invoice was made at the custom-house of the port; and enough appears to show that the collector liquidated the duties at thirty-five per cent ad valorem, holding that the importations were subject to duty under the last clause of sect. 6 of the act of June 30, 1864, as other manufactures of cotton not otherwise provided for, certain articles of cotton manufacture therein previously named being declared subject to the same rate of duty. Appeal to the Secretary of the Treasury and due protest by the importers are admitted.

Payment was made by the importer under protest; and his executors instituted the present action of assumpsit in the State court, subsequently removed into the Circuit Court, and there prosecuted, to recover the excess of duty which, as they allege, the collector unlawfully exacted, and which the importer was compelled to pay to get possession of his goods. Protest was made upon two grounds: 1, That the goods were duty free under the act of March 2, 1861 (12 Stat. 195); or, 2, that the goods were subject to a duty of ten per cent ad valorem only, under the act of July 14, 1862, entitled an act increasing temporarily the duties on imports. Id. 650.

Instead of that, the United States contended in the court below, and still contend, that the decision of the collector, as approved by the Secretary of the Treasury, is correct, and that the goods imported were subject to an ad valorem duty of thirty-five per cent.

Appropriate issues being joined, the parties went to trial, and the verdict and judgment were for the defendant. Exceptions were taken by the plaintiffs, and they sued out the present writ of error.

Questions of fact were determined by the jury, and the questions of law presented for decision are the same as those raised in the protest; or, in other words, the plaintiffs still maintain the two theories there set up: 1. That the goods imported were duty free; 2. That, if they were not duty free, they were subject only to an ad valorem duty of ten per cent.

Import duties of ten per cent ad valorem were imposed by the act of June 30, 1864, on lastings, mohair cloth, silk, twist, or other manufactures of cloth, woven or made in patterns of such size, shape, and form, or cut in such manner, as to be fit for shoes, slippers, boots, bootees, gaiters, and buttons exclusively, not combined with india-rubber, which duty, it will be observed, is imposed upon the enumerated articles by name.

Extensive lists of enumerated goods made of silk or wool, as well as of cotton, are also given in the fifth, sixth, and eighth sections of the act, which are made subject to the duty or rate of duty there provided. Manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for, are there made subject to a duty of fifty per cent ad valorem. Provision is also made that all manufactures of wool of every description, made wholly or in part of wool, not otherwise provided for, twenty-four cents per pound, and, in addition thereto, forty per cent ad valorem. Cotton goods, to a large extent, are placed in the enumerated list; but the further provision is, that all other manufactures of cotton, not otherwise provided for, shall be subject to a duty of thirty-five per cent ad valorem.

Goods of the kind imported, if made of cotton, were, beyond all doubt, when that act went into operation, subject to a duty of ten per cent ad valorem, under the clause enumerating that class of goods and imposing that rate of duty. 13 id. 208.

Rates of duty on these articles remained unchanged from that time until the passage of the joint resolution of the 2d of March, 1867, which repealed the paragraph in sect. 5 of the act of June 30, 1864, enumerating the articles, and imposing a duty of ten per cent ad valorem on the same. Wool is also included in the repealing clause; but that circumstance does not diminish the effect of the argument, as every article enumerated in the paragraph in question is specifically named in the repealing joint resolution. 14 id. 511.

Customs duties from that date were levied and collected on all the articles enumerated in that paragraph, if manufactured of cotton, at the rate of thirty-five per cent ad valorem; the ruling of the department being, that the repeal of the clause enumerating the articles left the same dutiable under the clause imposing a duty of thirty-five per cent on all manufactures of cotton not otherwise provided for in the same act.

Manufacturers of buttons complained that their business could not bear so high a rate of duty, and Congress, at their request, amended the joint resolution referred to, and took buttons out of its operation, the effect of which was that lastings, mohair cloth, silk, twist, or other manufactures of cloth, woven or made in such manner as to be fit for buttons exclusively, became dutiable under the clause repealed by the before-mentioned joint resolution, and only at the rate of ten per cent ad valorem.

Collated in this manner, these statutory regulations are as plain in their construction as any thing which depends upon a revenue act of Congress well can be. Cloth of the kind intended for buttons is dutiable at ten per cent ad valorem; but all the other articles of manufactured cloth, woven or made of cotton, in patterns of such size, shape, and form, or cut in such manner, as to be fit for shoes, slippers, bootees, or gaiters, are dutiable under the clause embracing manufactures of cotton not otherwise provided for, at the rate of thirty-five per cent ad valorem.

Attempt at one time was made, as indicated in the second ground of the protest, to maintain the proposition that the repeal by the joint resolution referred to, of the enumerating paragraph in the act of June 30, 1864, revived the same provision in the act of July 14, 1862, which imposed the same duty as the repealed paragraph. 12 id. 550; Butler v. Russell, 11 Int. Rev. Rec. 30.

Eminent counsel urged the proposition; but the court held otherwise, for reasons which are entirely satisfactory. Nor is it necessary to examine that question, as the plaintiffs in this case abandon that theory, and rest their case entirely upon the first ground assumed in the protest,-that the goods imported are exempt from duty; or, in other words, that the effect of the joint resolution under consideration was to repeal the paragraph in the two prior acts, to wit, the act of 1864 and the act of 1862, and to revive the corresponding provision in the act of the 2d of March, 1861, which included such goods in the free list.

Cases arise undoubtedly where it is properly held that the repeal of a repealing statute revives the old law; but the court is of the opinion that the rule in that regard is inapplicable to the case before the court, for several reasons, which will more fully appear from a review of the acts of Congress immediately preceding the act under which the duties in this case were levied and collected.

Temporary increase of import duties, to the extent of fifty per cent on the rates authorized by law, was imposed on the 29th of April next preceding the passage of that act, by the joint resolution of that date. 13 Stat. 405. But the events of that period required stable regulations, and it was the evident intention of Congress, in passing the act in question, to effect a permanent increase of duties to meet the public exigency; and they accomplished it in part by diminishing the free list and by changing the basis of computation in ascertaining the dutiable value of imported merchandise, and by including the costs and charges in the appraisement. All prior acts upon the subject, in force at the time, to the extent therein specified, were revised; and it is safe to affirm that the articles enumerated in that act were subject to no other duty than that which the act imposed.

Evidence to support that proposition is found in almost every section of the act. No reference to any other act is made for that purpose; but the twenty-second section of the act provides that the existing laws shall extend to, and be in force for, the collection of the duties imposed by this act, for the prosecution and punishment of all offences, and for the recovery, collection, distribution, and remission of all fines, penalties, and forfeitures, as fully and effectually as if every regulation, penalty, forfeiture, provision, clause, matter, and thing to that effect in the existing laws contained had been inserted in and re-enacted in this act. Plain provision is also made that 'the duties upon all goods, wares, and merchandise imported from foreign countries, not provided for in this act, shall be and remain as they were according to existing laws' at the time the joint resolution was passed which temporarily increased the rates of duties fifty per cent. 13 id. 405.

These provisions must be taken in connection with the repealing clause of the act; and, when so considered, it is clear that Congress intended to make a comprehensive and complete revision to the extent specified, of all the antecedent acts imposing import duties. When a revising statute covers the whole subject-matter of antecedent statutes, the revising statute virtually repeals the antecedent enactment, unless there is something in the nature of the subject-matter or the revising statute to indicate a contrary intention. Davies et al. v. Fairbairn et al., 3 How. 636; School District v. Whitehead, 2 Beas. 290.

None of these principles are controverted by the plaintiffs; but still they insist that the joint resolution which repealed the paragraph in the act of the 30th of June, 1864, imposing the duty of ten per cent ad valorem on the goods, had the effect to revive the provision in the act of 1861, which placed such goods in the free list.

Nothing is contained in the joint resolution expressing any such intention, or to indicate that Congress did not intend exactly what followed, in case the antecedent provision is held not to be revived. Congress has now provided that whenever an act is repealed which repealed a former act, such former act shall not thereby be revived, unless it shall be expressly so provided; but that provision was not in force when the cause of action in this case arose, nor is it referred to for any other purpose than to show that such a conclusion ought not to be adopted in a case where it is unreasonable to suppose that Congress intended such a result.

Had it been supposed that such was the effect of the joint resolution, the manufacturers of buttons would never have applied for the relief which was granted to them by the second joint resolution. Beyond all doubt, they applied for that relief upon the ground that their importations were dutiable at thirty-five per cent ad valorem; and it is equally certain that Congress granted the relief upon the ground that the second joint resolution left the cloth which the manufacturers of buttons imported subject to the duty of ten per cent ad valorem, as imposed prior to the passage of the first joint resolution.

Public necessity demanded increased rates of import duties when the joint resolution of the 29th of April, 1864, was passed; and every one having any knowledge upon the subject knows that the act of the 30th of June of that year was enacted for the express purpose of increasing the rates of duty on foreign importations: nor is it any less certain that the repeal of the paragraph in that act rendering the goods of the character in question dutiable at the rate of ten per cent ad valorem was regarded by Congress and the Treasury Department, and everybody else interested in the legislation, as a measure having the effect to augment the rate of duty from ten per cent ad valorem to thirty-five per cent, as the duties were liquidated in this case.

Customs duties on such importations, except where the article was woven or cut in patterns, so as to be fit for buttons exclusively, were levied and collected pursuant to that view of the law from the date of the repeal of that paragraph, March 2, 1867, to Nov. 15, 1870, when the present controversy arose. In the mean time, the manufacturers of cotton cloth intended for buttons complained that they were oppressed, and Congress passed the joint resolution to relieve their grievance. 15 id. 24.

By that resolution, it was provided that the prior joint resolution shall not be considered to apply to lasting, mohair cloth, silk, twist, or other manufactures of cloth, woven or made in patterns of such size, shape, and form, or cut in such a manner, as to be fit for buttons exclusively.

Viewed in the light of these provisions, it seems almost past belief that the attentive reader should have any doubt as to the intent of Congress or the legal effect of the joint resolution which repealed the enumerating paragraph in the act passed to increase duties on imports. 13 id. 208.

In the exposition of statutes, the established rule is that the intention of the law-maker is to be deduced from a view of the whole statute, and every material part of the same; and where there are several statutes relating to the same subject, they are all to be taken together, and one part compared with another in the construction of any one of the material provisions, because, in the absence of contradictory or inconsistent provisions, they are supposed to have the same object and as pertaining to the same system. Resort may be had to every part of a statute, or, where there is more than one in pari materia, to the whole system, for the purpose of collecting the legislative intention, which is the important inquiry in all cases where provisions are ambiguous or inconsistent.

Rules and maxims of interpretation are ordained as aids in discovering the true intent and meaning of any particular enactment; but the controlling rule of decision in applying the statute in any particular case is, that, whenever the intention of the legislature can be discovered from the words employed, in view of the subject-matter and the surrounding circumstances, it ought to prevail, unless it lead to absurd and irrational conclusions, which should never be imputed to the legislature, except when the language employed will admit of no other signification.

Apply these rules to the case before the court, and it is clear that the goods imported in this case were subject to an ad valorem duty of thirty-five per cent, as appears from the following considerations:--

1. Importations of the kind were duty free under the act of March 2, 1861, which placed 'lastings, mohair cloth, silk, twist, or other manufactures of cloth cut in strips or patterns of the usual size and shape for shoes, slippers, bootees, gaiters, and buttons exclusively, not combined with india-rubber, in the free list. 12 id. 195.

2. Goods of the kind were subject to a duty, under the act of July 14, 1862, of ten per cent ad valorem, the goods being described as follows: Lasting, mohair cloth, silk, twist, or other manufacture of cloth, woven or made in patterns of such size, shape, and form, or cut in such manner, as to be fit for shoes, slippers, boots, bootees, gaiters, and buttons exclusively, not combined with india-rubber.

3. All of the provisions of those two tariff acts imposing import duties, or prescribing the rates of such duties, were, to the extent therein specified, revised by the act of June 30, 1864; and the provision there made in respect to the kind of goods in question was as follows: 'Lastings, mohair cloth, silk, twist, or other manufacture of cloth, woven or made in patterns of such size, shape, and form, or cut in such manner, as to be fit for shoes, slippers, boots, bootees, gaiters, and buttons exclusively, not combined with india-rubber, ten per cent ad valorem.'

4. Congress, March 2, 1867, repealed that paragraph, as set forth in the last-named act, reciting the paragraph in haec verba, adding therein the word 'wool,' showing conclusively that Congress intended to repeal the entire paragraph, which had been three times before incorporated into the tariff acts.

5. Manufacturers of buttons complained that the effect of the repeal was to impose an ad valorem duty of thirty-five per cent on fabrics designed and used for their manufacture, and insisted that it was greater than their business could bear. They were heard; and Congress, having become satisfied that their complaint was reasonable, passed the joint resolution of the 29th of March, 1867, which provided that the prior joint resolution repealing that paragraph 'shall not be construed to apply to lastings, mohair cloth, silk, twist, or other manufactures of cloth, woven or made in patterns of such size, shape, and form, or cut in such manner, as to be fit for buttons exclusively,' leaving it in full operation as to every other article in the paragraph. 15 id. 24; Butler v. Russell, supra.

Weighed in the light of these suggestions, which are deduced entirely from a comparison of the different provisions in the acts of Congress upon the same subject, it seems impossible to deny that the ruling of the circuit judge is correct.

Other questions were discussed at the bar, but they are not material to the decision of the present case.

Judgment affirmed.

title: Kohlsaat v. Murphy/Opinion of the Court


text: Talk:Kohlsaat v. Murphy/Opinion of the Court


text:
Mitchell v. United States (96 U.S. 162)

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. Thomas J. Durant for the appellant.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Mitchell v. United States (96 U.S. 162)


text: Talk:Mitchell v. United States (96 U.S. 162)


text:
Mitchell v. United States (96 U.S. 162)/Opinion of the Court

By the charter-party, the United States took to freight the claimant's steamer 'Star of the South,' lying in the port of New York, to load at New York or elsewhere, and proceed on a voyage thereinafter mentioned. The voyage was defined in an after-part of the charter to be 'to New Orleans and return.' It is evident, however, the parties had in mind possibly more than one voyage. It was stipulated that the charter should go into effect at 12 o'clock, M., on the fourteenth day of September, 1863, and should continue in force as long as said vessel might be required by the United States War Department; that is, of course, required for the voyages for which she was chartered. The United States also agreed to employ the vessel 'for the voyage or voyages aforesaid.' The only voyages before spoken of were from New York to New Orleans and return, or from New York to some other place of loading, thence to New Orleans, and return to New York. Under the charter, she might have been sent to China, to load there, and to proceed thence to New Orleans, returning to New York. She made a voyage from New York to New Orleans, and returned, discharging her return cargo on the 13th of October, 1863; and, being required for a second voyage to New Orleans, she was kept in continuous service from the discharge of her cargo on that day. She completed her second voyage by unloading her return cargo on the 22d of November, 1863, at New York, and from that time until Nov. 30 of the same year she performed no service for the government, though she was manned and equipped ready for service. On the 30th she was taken into the service of the government again, under another charter-party. For the two voyages from New York to New Orleans and back the claimant was paid the price per day stipulated in the first charter-party, up to Nov. 22, 1863, and he was also paid the stipulated price for the services of the steamer from Nov. 30 to Dec. 30, 1863, apparently the time occupied by her voyage under the second charter. The claimant now demands the per diem compensation for the time between the 22d of November, 1863, when the steamer completed her second voyage by discharging her cargo at New York, and the 30th of November, 1863, when she was again taken into government service under another charter-party,-a period of eight days. The claim rests on the stipulation in the first charter, that the United States would pay for each and every day the vessel might be employed under the charter the sum of $450. That she was not employed by the government during those eight days is manifest from the findings of the Court of Claims, though she was ready for employment. She was chartered at first for a voyage or voyages. The contract was not a time charter, notwithstanding the compensation was agreed to be measured by the time during which she might be employed, and the contract only bound the charterers to employ her 'on the voyage or voyages aforesaid,' and to pay therefor the stipulated per diem compensation for every day she was employed; that is, employed on the voyages. There was no provision for demurrage.

It is argued, on behalf of the claimant, that the contract was to pay the per diem compensation until the steamer was returned to the owner, and that she was not so returned until notice of her delivery was given to him. But we do not so read the contract. The government undertook to furnish fuel for her navigation until she was returned to the owner in New York; but they undertook to pay only for the time she was employed. Such was the express agreement. Had it been intended that payment should be made until the vessel was formally handed over to the owner, or notice given to him of such surrender, the words 'for each and every day the vessel may be employed' would not have been used. The promise would have been to pay for each and every day until the vessel should be returned to the owner. In truth, she was not taken out of his possession. His officers and his seamen had charge of her; and the charterer obtained by the contract only their services in use of the vessel.

The Court of Claims found that, after the completion of the first voyage, Captain Stimson, the assistant-quartermaster at New York, indorsed on the charter-party the following order: 'The services of the above vessel being required for a second voyage to New Orleans, she is kept in continuous service from the date of the discharge of her cargo, on the 13th of October, 1863.' It is difficult to see why this indorsement was made or allowed, if the hiring was not for a voyage or voyages, and if it was not so understood by the parties. And when the second voyage was completed, on the 22d of November, the charter-party was suspended by order of Stimson; and it remained so suspended until Nov. 30, when the vessel was again taken into government service under another charter-party. If the contract was suspended, the vessel ceased to be in the control of the government, and the owner was at liberty to employ her at his will. And if during the period of suspension she was not out of government service, it would be incorrect to say she was again taken into that service. The quartermaster had no power to control suspended vessels.

Without saying more, it is enough for this case that the charter was for a voyage or voyages; that the engagement of the United States was to employ the vessel on the voyage or voyages, and to pay for each day she might be employed. During the eight days for which compensation is now claimed she was not thus employed, and consequently there is no liability resting on the government.

The judgment of the Court of Claims dismissing the claimant's petition will be affirmed; and it is


text: Talk:Mitchell v. United States (96 U.S. 162)/Opinion of the Court


text:
Water and Mining Company v. Bugbey

ERROR to the Supreme Court of the State of California.

The facts are stated in the opinion of the court.

Mr. Samuel Shellabarger and Mr. J. M. Wilson for the plaintiff in error.

Mr. Aaron A. Sargent, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Water and Mining Company v. Bugbey


text: Talk:Water and Mining Company v. Bugbey

title: Talk:Water and Mining Company v. Bugbey


text:
Water and Mining Company v. Bugbey/Opinion of the Court

This was an action of ejectment, brought by Bugbey, the defendant in error, against the Natoma Water and Mining Company, the plaintiff in error, to recover possession of a part of the south half of section 16, township 10 north, of range 8 east, Mount Diablo base and meridian, in the State of California. He claimed title by grant from the State, and the company under the act of Congress of March 3, 1853, 'to provide for the survey of public lands in California, the granting of pre-emption rights therein, and for other purposes' (10 Stat. 244), and the act of July 29, 1866, 'granting the right of way to ditch and canal owners over the public lands, and for other purposes' (14 Stat. 251).

The decision of the Supreme Court of California having been against the title set up by the company, this writ of error was brought. The facts affecting the Federal question in the case are as follows:--

In 1851, the company commenced the construction of a canal upon the unoccupied and unsurveyed public lands of the United States, for the purposes of supplying water to miners and others. This canal was completed, at large expense, in April, 1853, and the premises in controversy are included within its limits. By the act of March 3, 1853 (10 Stat. 244), Congress provided for the survey of the public lands of California, and granted sections 16 and 36 to the State, for school purposes. By sect. 7 of this act, it was provided, 'that where any settlement, by the erection of a dwelling-house, or the cultivation of any portion of the land, shall be made on the sixteenth and thirty-sixth sections, before the same shall be surveyed,. . . other land shall be selected by the proper authorities of the State, in lieu thereof, agreeably to the provisions of the act of Congress approved May 20, 1826,. . .' 4 Stat. 179.

The survey of the lands in controversy was completed May 19, 1866, and the plats deposited in the United States land-office for the district, June 16, 1866. At that time, Bugbey was an actual settler upon the legal subdivision of the section 16 in which the premises are situated, and had thereon a dwelling-house, and agricultural and other improvements. He made no claim under the pre-emption laws of the United States. Other persons were also in possession of other portions of the section. The act of 1853 required (sect. 6) that, 'where unsurveyed lands are claimed by pre-emption, the usual notice of such claim shall be filed within three months after the return of the plats of the surveys to the land-offices.' On the 28th of September, 1866, the register of the United States land-office certified to the State land-office that no claim had been filed to this section 16, except the pre-emption of one Hancock, which was afterwards abandoned.

Sect. 9 of the act of July 26, 1866 (14 Stat. 253) is as follows:--

'That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged and confirmed:. . .' The company has brought itself within the provisions of this section, if at the time of the passage of the act the United States held title to the lands.

On the 22d of April, 1867, Bugbey purchased the portion of the section on which the premises in controversy are situated from the State of California, and took a patent. The company does not in any manner connect itself with this title, or with that of any other occupant of the section previous to the survey.

In Sherman v. Buick (93 U.S. 209), it was decided that the State of California took no title to sections 16 and 36, under the act of 1853, as against an actual settler before the survey, claiming the benefit of the pre-emption laws, who perfected his claim by a patent from the United States. In such a case, the State must look for its indemnity to the provisions of sect. 7 of the act. As against all the world, except the pre-emption settler, the title of the United States passed to the State upon the completion of the surveys; and if the settler failed to assert his claim, or to make it good, the rights of the State became absolute. The language of the court is (p. 214): 'These things [settlement and improvement under the law] being found to exist when the survey ascertained their location on a school section, the claim of the State to that particular piece of land was at an end; and it being shown in the proper mode to the proper officer of the United States, the right of the State to the land was gone, and in lieu of it she had acquired the right to select other land, agreeably to the act of 1826.'

In that case, the controversy was between the settler, who had perfected his title from the United States, and a purchaser from the State. Here the company does not claim under the settler's title, but seeks by means of it to defeat that of the State, and thus leave the land in a condition to be operated upon by the act of July 26. The settler, however, was under no obligation to assert his claim, and he having abandoned it, the title of the State became absolute as of May 19, 1866, when the surveys were completed. The case stands, therefore, as if at that date the United States had parted with all interest in and control over the property. As the act of July 26 was not passed until after that time, it follows that it could not operate upon this land in favor of the company.

This disposes of the only Federal question in the record.

Judgment affirmed.


text: Talk:Water and Mining Company v. Bugbey/Opinion of the Court


text:
Brawley v. United States

APPEAL from the Court of Claims.

This is a petition by Brawley to recover the amount of eight hundred and forty cords of wood, at $3.99 per cord, which the claimant alleges that he was prepared and ready to furnish, under a contract entered into by the claimant with Lieutenant-Colonel Holabird, Deputy Quartermaster-General United States Army, in May, 1871. The principal article, and that on which the present controversy arises, was in the following words:

'I. That the said Daniel F. Brawley, his heirs, assignees, administrators, and executors, shall sell, furnish, and deliver, cut and split in lengths of four (4) feet, duly piled or corded under the direction and supervision of the post-quartermaster, within the enclosure of the post of Fort Pembina, Dakota Territory, eight hundred and eighty (880) cords of sound, of first quality, of merchantable oak wood, more or less, as shall be determined to be necessary, by the post-commander, for the regular supply, in accordance with army regulations, of the troops and employees of the garrison of said post, for the fiscal year beginning July 1, 1871, and ending June 30, 1872. The delivery of eight hundred and eighty (880) cords to be completed on or before Jan. 1, 1872; but any additional number of cords of wood that may be required over and above that amount may be delivered from time to time, regulated by the proper military authorities, based upon the actual necessities of the troops for the period above mentioned; provided, that if the wood be less than four (4) feet in length, due allowance shall be made for such shortage by an increased quantity, the cubical contents of the wood being measured in all cases. Delivery on this contract to begin on or before July 15, 1871, unless the time be extended by the commanding officer of the post.'

It appears by the findings of the Court of Claims that said contract was entered into in pursuance of an estimate made by the proper officer of the quartermaster's department, and after an advertisement for proposals, upon which the claimant made a bid which was accepted,-the quantity named being eight hundred and eighty cords of wood or more. The bids were opened April 15, 1871. The contract was awarded to the claimant May 6, 1871, but, although dated on that day, it was not executed until about the 14th of June. About the 18th of the latter month, the post-commander of Fort Pembina first learned of it, and informed the claimant that but forty cords of wood would be required thereon, and forbade his hauling any more to the government yard. On the 1st of July, written notice was given to him to the same effect.

But 'before the contract was signed, the claimant had cut the eight hundred and eighty cords of wood, had taken ten oxteams, with teamsters, wood-haulers, and supplies from Saint Cloud and Sauk Centre, Minnesota, a distance of three hundred and sixty miles, to Pembina, for the purpose of hauling the wood; and fifty-five cords thereof had been hauled to the fort by permission, and with the understanding that the claimant assumed all risk regarding the acceptance of the same. And twenty cords more were hauled there by him, upon the same understanding, before he received any notice that only forty cords would be received on the contract. Subsequently he hauled eight hundred cords to within about twenty-five rods of the fort, and left the same on the land of Mr. Myrick, because the wood, if left in the forest where it was cut, was in danger of being destroyed by the fires which annually run through that region.

'Forty cords of wood only were received and accepted by the post-commander, and for that the claimant has been paid according to the contract.

'The balance of the wood cut and hauled by the claimant remained where it was deposited by him until the autumn of 1873, when it was sold by said Myrick to one Stiles, a government contractor, for $3.62 1/2 a cord.

'The post of Fort Pembina did not in fact need for the fiscal year commencing July 1, 1871, more than the forty cords of wood which were accepted by the defendant.'

The Court of Claims dismissed the petition, and the claimant appealed.

Mr. John B. Sandborn for the appellant.

The negotiations between the parties preceding the execution of the contract should be considered in connection with it, in order to ascertain their precise intention at the time of making it. 1 Greenl. Evid., p. 128, sect. 8; id., pp. 129, 130, and authorities cited; Robinson v. Fiske, 25 Me. 401; Higgins v. Wasgalt, 34 id. 305; Metcalf v. Taylor, 36 id. 28; Wilson v. Troup, 2 Cow. (N. Y.) 196.

In a contract of this character, a specific quantity, if not designed to be furnished, should not be mentioned. Fair dealing prohibits it; and the United States, above all others, should deal openly and fairly.

Where the words 'more or less' are used in an executory contract in connection with a definite quantity, the law gives them only such force as may be necessary to relieve the par ties from the precise quantity. A fixed quantity, with these words added in such a contract, can in no case have the force of the words, 'so much as may be required.' Benj. Sales, 569-571, and authorities cited.

All contracts for supplies for the army are required by law to be made on estimates, and hence for specific quantities.

The Solicitor-General, contra, cited Grant v. United States, 7 Wall. 331; Gwillim v. Daniell, 2 Cromp., M. & R. 61; Hayward v. Scougall, 3 Camp. 58; Pembroke Iron Co. v. Parsons, 5 Gray (Mass.), 589; Robinson v. Noble's Adm'rs, 8 Pet. 181; Lobenstein v. United States, 91 U.S. 324.

MR. JUSTICE BRADLEY, after stating the case, delivered the opinion of the court.

title: Brawley v. United States


text: Talk:Brawley v. United States

title: Talk:Brawley v. United States