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bales there examined was, and that the other toms officers of less than one bale in ten 3 were not, among the 10 bales in controver of the invoice had the effect of invalidating sy; and that this 1 bale belonged to one the assessment of the higher tax upon the of the plantation lots containing 10 bales, tobacco, provided for in paragraph 246 of and was the bale upon which the importer the tariff act of 1883, and made it dutiable paid duty at the rate of 75 cents a pound at the lower rate, as prescribed in para. upon 125 pounds thereof and 35 cents a graph 247 of that act. pound upon 54 pounds thereof. * Other testi The same ground of contention is presented mony was introduced to show the actual in this court, the collector asserting that the character of the tobacco.

provisions of section 2939, Rev. St., are in On the trial, after all the testimony on the nature of instructions to the officers of both sides had been introduced, the collector the customs, intended solely for the promoved the court to direct a verdict in his tection of the revenue, and, therefore, that favor on the ground that the importers had no benefit from a violation of the statute not established facts sufficient to constitute could be taken by an importer. The im. a cause of action, which motion was denied. porters insist, on the other hand, that in. The collector excepted to this ruling, and asmuch as the examination may have the asked to be allowed to go to the jury gener

effect of fixing a higher duty upon a given ally upon the issues of the case, and upon invoice of tobacco than that collectible upon the court's refusal of this request the col leaf tobacco of the kind more extensively lector asked that the case might go to the imported, the importer might be injured if jury upon the question whether there had the characteristics of the tobacco necessary been one package examined of the bales in to justify the exaction of the higher tax controversy, claiming that, although there was were determined by an examination differ. not 1 bale in 10 of the entire invoice sent to ent from that prescribed by section 2939, the public stores, yet, as there were only 10 which enactment, therefore, they believe to bales in question, representing 4 plantation be intended as well for the protection of the rots, and as 4 bales representing those 10 importer as the government, and hence man. bales had been actually examined at the pub datory. Collateral to the argument upon lic stores, there was a sufficient compliance this point is the discussion by the parties as with the statute. The court refused to sub to whether the incident of the actual ex. mit this question to the jury, to which re amination in this case of one of the ten fusal the collector excepted. The importers bales in controversy, and the examination then moved for the direction of a verdict in of one bale from each of four plantation their favor, and the court granted the mo lots represented by the ten bales, was tion, and directed a verdict for them for the equivalent to a substantial compliance with sum of $708.12, to which action of the court the statute. the collector excepted. Judgment in favor

Whether a statute is mandatory or di. of the importers, for the said amount, was rectory is frequently a question of a great duly entered on June 20, 1890, and subse deal of importance to taxpayers, for the quently the collector brought the case to reason that errors in taxation are often sus. this court by a writ of error.

ceptible of correction only by pointing to The protest filed by the importers con the nonobservance of some law which, strict. tained, among other things, an allegation ly followed by an officer, might have pre at there had been no legal appraisal of the vented the errors complained of. The acts Tobacco, for the reason that the provisions of of assessors, for instance,* in matters relat. section 2939 of the Revised Statutes had not ing to general municipal and state taxation, been complied with. That section is as fol are, if legally performed, usually conclusive lows:

upon the taxpayer, unless some means of "The collector of the port of New York relief has been provided by the legislature, shall not, under any circumstances, direct to

and often this relief is narrow. Very rarely, be sent for examination and appraisement if ever, is there power in the judiciary to less than one package of every invoice, and enter into all the questions affecting the one package at least out of every ten pack- legality of a charge for taxes, and therefore, ages of merchandise, and a greater number in general, a statute, even though not in exshould he, or the appraiser, or any assistant press terms mandatory, is treated as being appraiser, deem it necessary. When the sec so if its literal observance might afford sub. retary of the treasury, however, from the stantial protection to the party complaincharacter and description of the merchandise, ing, and a failure of such observance by an

may be of the opinion that the examination officer is considered to render his act void. of a less proportion of packages will amply French v. Edwards, 13 Wall. 506, 511. protect the revenue, he may, by special regu In the case of customs duties, however, a lation, direct a less number of packages to party dissatisfied with the classification of be examined."

imports may apply to the courts to have It seems, from the nature of a part of the examined and reviewed everything involv. evidence introduced on the trial, that the ing the legality of the demand which has importers contended in the court below that been made upon him by a collector, and the effect of the examination by the cus statutes containing directions to government

of ou

officials, as to the manner in which they addition to ascertaining the value of goods, shall become informed of the dutiable char to ascertain the dutiable qualities of tobacco acter of merchandise, afford importers an imported, and this act of the appraiser seems altogether different kind of protection from usually to be denominated an appraisement. that just mentioned. At most, a neglect of At least, that word is so used by counsel on such provisions operates to no greater dis both sides of this case. Unless, however, advantage to a party than to subject him this act of the appraiser is an appraisement to the necessity of bringing an action which in the sense of being an ascertainment of he might not have felt impelled to bring if value, it would not be just to an importer the tax had been ascertained in the man to regard it as an appraisement in this kind ner prescribed. The unlawful demand of of a case. the duty does not conclude his rights, but, Section 3011, Rev. St., provided that any at the most, merely lays upon him the in. person who had made payment under proconvenience of going before a tribunal in test, and in order to obtain possession* of which those rights will be declared.

merchandise imported for him, to any colAn examination of one package in ten of lector, or person acting as collector, of any the merchandise might have shown to the money as duties, when such amount of duties satisfaction of the collector that the importa was not, or was not wholly, authorized by tion was of the character the importer claim. law, might maintain an action in the nature ed it to be; the examination of one package of an action at law, which should be triable in fourteen may have given the collector a by jury, to ascertain the validity of such different impression, to the disadvantage of demand and payment of duties, and to rethe importer. But the proceedings do not cover back any excess so paid. This statute necessarily end with the collector's decision, is general in its terms, and is subject to but and the importer's rights are not finally fixed one qualification, namely, that in the action until the character of the goods bas been provided for no question can be raised as to found by the court.

the value of the merchandise, except to show The protection of the convenience only of that because of some illegality in the apa taxpayer is not of such a vital nature as praisement the value fixed by the appraiser to authorize a court to treat a statute* pri- should not be taken as the basis of the duties, marily directed to public officers for their but that the duties should therefore be fixed guidance, and the substantial protection of by the invoice. the government, as mandatory, and to con In the case of Hilton v. Merritt, 110 U. S. sider official acts not in strict conformity 97, 3 Sup. Ct. 548, Mr. Justice Woods said, with the statute as void. The protection in must be substantial

, and must be intended Considering the acts of congress as estabas a guard of rights or property. Cooley, lishing a system, and giving force to all the Tax'n, pp. 215, 216.

sections, its plain and obvious meaning is In this view, it is apparent that the usual that the appraisement of the customs officers presumption of a legal collection is not shall be final, but all other questions relative changed by the circumstances of this case, to the rate and amount of duties may, after and that the burden is upon the importer of the importer has taken the prescribed steps, overcoming this presumption by proof that be reviewed in an action at law to recover the exaction of the duties was unlawful. duties unlawfully exacted. Questions fre

If the dutiable character of the goods in quently arise whether an enumerated article the present case were to be determined by belongs to one section or another.

In value, the question of the effect of section determining the rate and amount of duties, 2939 might be of consequence to the impor the value of the merchandise is one factor, ters, since in that event the value fixed by the question of the schedule it properly falls the appraisers, under section 2930, Rev. St., under is another. Questions relating to the relating to appeals from appraisements, classification of imports, and consequently to would be final, unless the appraisement were the rate and amount of duty, are open to in some respect unlawful. The question of review in an action at law." the value of the goods could not be raised in A common instance of the recognition of an action against the collector, and an attack the right of a party to review, in an action upon the legality of the appraisement, for at law, a question of the classification of imthe purpose of having it declared illegal, ports, is to be found in cases where there is and the goods therefore declared dutiable no dispute as to the character of the merat the value stated in the invoice, would be chandise, but the contest is upon the name the only means of redress by a court for an properly applicable to it, in the meaning of illegal exaction of duties based upou an a statute. Many such cases are cited in erroneous valuation. The duty chargeable Cadwalader v. Zeb, 151 U. S. 171, 176, 14 upon leaf tobacco was not fixed with refer Sup. Ct. 288, which case is itself a similar ence to its value, but to certain prescribed instance. In such controversies the question characteristics of size, fineness of texture, to be answered is what the article is. The and weight. It seems to have been the prac- question is the same where there is no distice, under instructions issued by the secre pute over terms, but as to the qualities or tary of the treasury, for the appraiser, in characteristics necessary to bring the article *

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within the statutory description. In either mixed. If the first four hands drawn should
case the matter to be decided is the portion be entirely uniform, we probably would not
of the act under which the article properly draw any more, and in any event we would
falls, and in all cases, eliminating only the be hardly likely to draw more than ten
question of the value of the merchandise, the hands."
classification may be reviewed in an action If, then, a bale, or other separate and con-
at law.

crete quantity of leaf tobacco, contained We are thus brought to the question of the only leaves of such uniformity of character actual character of the tobacco, with refer as to be, in their collective form, of one ence to the paragraph under which it was class, the bale, or other separate collection, properly dutiable. This question is raised by would be the unit contemplated in the perthe following allegation of the protest: “We centage and weight tests of paragraph 246. protest against the estimate of quality of the On the other hand, if the bale contained different grades of said tobacco as made by tobacco of two classes, the unit would be the appraiser, and the assessment of 75 cents the ascertained quantity of either class. per pound, as made by you, as unlawful, The leaf tobacco meant by paragraph 246 is, and as not in accordance with the provisions apparently, a collection of leaves, or half of schedule F of the act of March 3, 1883, leaves, having the similarity caused by the claiming said tobacco to be dutiable under circumstances of their having grown in soil said provision at only 35 cents per pound, of the same general character, in the same because eighty-five per cent of said tobacco climate, and under the same general condiis not of the requisite size and of the neces tions of moisture or dryness, and by such sesary fineness to be suitable for wrappers, and lection or assortment as it may be customary less than one hundred leaves are required to to make on the plantation; yet having the weigh a pound.”

differences which, despite the similarity of The provisions of schedule F of the tariff habitat and environment, are to be found act of 1883, under which the duties in this in all natural products. Congress is, of case were exacted, were as follows:

course, presumed to be familiar with the "246. Leaf tobacco of which eighty-five per fact that leaf tobacco is divided into classes, cent is of the requisite size and of the neces or is subjected, before being placed in bales, sary fineness of texture to be suitable for to some kind of an assortment, and a knowl. wrappers, and of which more than one hun- edge of the similarities and differences dred leaves are required to weigh a pound, which are to be found in a collection of if not stemmed, seventy-five cents per pound; leaves of a class doubtless furnished the if stemmed, one dollar per pound.

reason for the adoption of the percentage “247. All other tobacco in leaf, unmanu test. factured and not stemmed, thirty-five cents All the tobacco in question in this case, per pound."

as the evidence on both sides shows, was Diverse views were entertained by the par raised in the same country, and was all*of ties concerning the meaning of paragraph the class known to the trade as "wrappers." 246, the most important of which had refer- Therefore, any bales, or, indeed, the whole ence to the question whether the bale was to invoice, if it might conveniently be treated be treated as the unit to which the percentage as a whole for the purpose, was just such test was to be applied, or whether the char a unit as was intended by the statute. Any acteristics of the tobacco were to be ascer other view of this legislation would make tained by examining a number of representa it meaningless, for the very term “per cent." tive hands (which are small bundles of leaves implies an understanding that the tobacco fastened together), and if certain of the ex to be taxed, even though of a uniform amined hands should be found to be dutiable grade, may contain some leaves possessing at one rate, and the others at a different, and some not possessing the qualifications the bale should be assumed to contain tobacco required for the higher tax. In such a case, of two different grades, and the duties laid if separate hands, taken from a bale conaccordingly.

taining only leaves of one class, were treat. The proper answer to this question seems ed as units, the result might be an inac. to depend upon the particular circumstances curate conclusion. Doubtless in the bands of a given case. It appears in the testimony classed as containing tobacco dutiable at on both sides of this case that leaf tobacco the lower rate there would be leaves having is divided into two classes, known as the all the requisites of the higher grade, while "wrapper class" and the "filler class." in the hands ascertained to be taxable at Whether or not a bale of tobacco is of uni. the higher rate would be leaves of the form character seems to be easily ascertained. lower grade. This might have the effect of A dealer in leaf tobacco, one of the witnesses making a division of tobacco of one comfor the collector, said: “We never draw mercial class into two grades with respect [from a bale) less than four hands, and it to taxation,-a division which we do not may run four hands, six bands, eight hands, believe to have been contemplated by the or ten hands, according as we may find statute. If the character of the tobacco is whether the bale has been packed honestly, to be learned from an examination of a as we term it, or whether it bas been packed l representative quantity therefrom, such as


ten hands, the hands should be separated, cent of the weight of the tobacco suitable and the statutory tests applied to the gen. for wrappers, and suggest that, “as the comeral collection of all the representative modity was bought, sold, and dutied by the leaves, irrespective of their casual associa. pound, the weight must be the test to which tion in the separate bands.

the percentage rule applies.” There is a Examining the evidence in this case, we practical objection to this view, however, find that one of the importers gave tes which renders it not acceptable. It might timony, based upon an examination of often happen that a half leaf which was samples from the bales in controversy, tend suitable, according to the required test, ing to show that two of the plantation would be joined, in an unstemmed leaf, to* lots which were represented by five of one which was unsuitable, in which case those bales contained tobacco of which 85 the weight of the respective parts could not per cent. neither of the surface of the be ascertained. The most natural interpreleaves nor of the quantity thereof, as esti tation of the paragraph in question is to mated by the weight of the bale, was of consider 85 per cent. of half leaves, or suit. the requisite size for wrappers; that the able half leaves 85 in number out of half other two lots, represented by the other five leaves 100 in number, as the requirement, bales in controversy, contained tobacco of and to regard the proportion of the weight which 85 per cent. of the surface, but not of the suitable half leaves to the weight of 85 per cent. of the weight, was suitable for all the leaves as immaterial. wrappers. He further testified that 85 per A further requirement of the act is that cent. of the tobacco was suitable for wrap the leaves of the collection must be of such pers in respect to fineness of texture.

average lightness that more than 100 are Considered with regard to fitness for wrap required to weigh a pound; that is to say, pers, each leaf of * tobacco is divided, by if the collection should weigh 160 pounds it what is called the “stem,” into two distinct must contain more than 16,000 leaves; or, portions. It is matter of common knowl. if some smaller collection, taken as repreedge that, in making wrappers, the stem is sentative of the whole, such as 10 hands, not used, but is removed, with the result of should weigh 4 pounds, this representative dividing the leaf into separate pieces. From collection must contain more than 400 leaves. these pieces only are wrappers made, and Here we are not to have in view, as in the their size and fineness of texture determine other test, the separate parts of the leaves, their suitability for wrappers; for if one

for the language of the act expressly propiece is of insufficient size it cannot be

vides for the condition that “100 leaves are aided in usefulness as a wrapper by the por required to weigh a pound.” The word tion on the other side of the stem. If to "leaves" plainly means leaves in their natbacco is imported with the stems removed, ural state, or whole leaves. each piece, or "side," as it appears to be Assuming that the importers, in testify, called by dealers and manufacturers, would ing concerning the size and fineness of tex. of necessity be treated as independent, for ture of the tobacco, had in mind the proper there would be no means of knowing with test when speaking of the percentage of the certainty what parts were originally togeth surface suitable for wrappers, we must take er in one leaf. In applying the test of size,

their evidence to mean that only 5 of the 10 therefore, the size of either side of the leaf bales in controversy contained tobacco of is to be looked to, and the evident require

which less than 85 per cent. fulfilled, as to ment of the statute is that 85 per cent of

the size and fineness of texture, the dehalf leaves, or 85 out of 100, are to be of mands of paragraph 246. It would seem, the requisite size and necessary fineness of

therefore, that the court below was in error texture for wrappers. In other words, each in directing a verdict for the importers, and of 85 half leaves out of 100 half leaves must that the judgment of that court ought to be contain a portion, sufficiently fine in texture, reversed, and the case remanded with diof the requisite size to make at least one

rections to set aside the verdict, and to orwrapper. Eighty-five per cent. of the sur der a new trial, in order that a jury may face of the single leaf is not intended, for pass upon the real character of the tobacco in that view any single leaf large enough

contained in the 10 bales withdrawn by the for a wrapper would be, in respect to size, importers. Judgment reversed. 100 per cent or entirely of the requisite size for wrapper purposes, or, if one wrapper

Mr. Justice BREWER did not sit at the could be made from it, the leaf would have,

argument or take part in the decision. as to size, no percentage of suitability. Hence, any leaf would be required to be

(155 U. S. 141, treated simply as fit or unfit,-100 per cent.

OLIN et al. v. TIMKEN. suitable in size or not suitable at all.-and

(November 19, 1894.) no general percentage test would be applicable.

No. 36. The importers call attention to their tes.


-ANTICIPATION. timony to the effect that in none of the four

1. Reissue patent to Tilton & Stivers (No. lots mentioned by them was there 83 per | 9,542), dated January 25, 1881, held invalid be


defendants, and referring the cause to a master for an account, which resulted in a final decree for damages to the amount of $27,897.75, and defendants appealed. The opinion will be found in 37 Fed. 205.

George J. Murray and Wm. HI. Doolittle, for appellants. Wm. M. Eccles, for appellee.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Appellants manufactured no buggies or vehicles of any kind, but purchased and made springs which were fitted on wooden bars to be attached to the vehicles, and sold such spring bars in the market, and to manufacturers of vehicles. The claims of the three patents, on which appellee's suit was based, were to combinations relating to side-bar buggies and wagons, the side-bar gear and buggy body being elements of each com., bination. These patents are as follows: * First. No. 197,689, declared to be for "im.. provement in carriage springs," was granted to Henry Timken, November 27, 1877, upon application filed October 27,1877. The drawings consisted of three figures: (1) A side view of a wagon body with a spring attached; (2) a bottom view of a wagon, showing the spring; and (3) "a sectional end view thereof."

The latter figure is as follows:

cause the original patent, No. 157,430, dated December 4, 1874, for crossing springs with a pivot bolt or articulate joint at the intersection, made no reference to an alternative structure, and the invention was unduly expanded by the introduction in the reissue of the word “preferably" to eliminate the pivot bolt or articulate joint (Hubery. Manufacturing Co., 13 Sup. Ct. 603, 148 U. S. 270); because the reissue was "made, by expansion, to cover structures in public and common use" after the date of the original patent; and because anticipated by prior use.

2. Patent to Henry Timken (No. 197,689), dated November 27, 1877, for springs attached to opposite sides of the bottom of a carriage body, crossing each other, and connected with the side bars, held to involve no invention, in view of the prior art; "and while the patented article may have been popular, and met with large sales, that fact is not important, where the alleged invention is without patentable novelty. Duer v. Lock Co., 13 Sup. Ct. 850, 149 U. S. 216."

3. Patent to C. W. Saladee (No. 239,850), April 5, 1881, for road-wagon springs, held anticipated, in view of the state of the art more than two years prior to the date of the application.

Appeal from the Circuit Court of the United States for the Southern District of Ohio.

This was a bill in equity by Henry Timken against Thomas D. Olin and Edwin D. Olin for the infringement of a patent. A decree was rendered for an injunction, with reference to a master for an account (37 Fed. 205); and upon the coming in of the master's report the same was sustained, and a decree rendered for complainant (41 Fed. 169). Defendants appeal.

This was a bill in equity, filed by Henry Timken in the circuit court of the United States for the Southern district of Ohio against Thomas D. Olin and Edwin D. Olin to restrain the infringement of three letters patent, namely, No. 197,689, granted to Henry Timken, November 27, 1877, for improvement in "carriage springs"; No. 239,850, to C. W. Saladee, April 5, 1881, for “road wagon"; reissue patent No. 9,542,* granted January 25, 1881, being a reissue of patent No. 157,430, to Tilton & Stivers, for improvement in "springs for vehicles," dated December 1, 1874. Complainant charged that these patents were capable of conjoint use with each other, and that defendants infringed them all. The answer set up want of patentability; anticipation; prior public use; noninfringement; that defendants had the right to manufacture the vehicle springs they made, under a patent (No. 246,571) granted to W. H. Stickle, August 30, 1881, reissued to the defendant Thomas D. Olin, August 21, 1883, as reissue No. 10,372, and which patent was owned by the defendants; also, that the Tilton & Stivers' reissue was utterly void, because not issued for the same invention as the original patent, and for inventions not shown or described therein. The circuit court held the patents valid, and that the defendants infringed the single claims of the Tiinken and Saladee patents, and the third, fourth, and fifth claims of the Tilton & Stivers' patent, and entered a decree enjoining


The specification states:

“My invention relates to buggy and wagon springs; and it consists in the attachment of springs to the bottom of the body at the sides, and crossing the bottom of the body, and connecting with the side bars on the opposite sides of the body, as will be here. inafter more fully set forth.

“The annexed drawing, to which reference is made, fully illustrates my invention.

"A represents the hind axle, and A', the front axle, the latter having the usual head block, B. The hind axle, A, and head block,

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