BEFORE BOARD 3, May 3, 1909. No. 21197.-THICK SOY.-Protests 348525-28630, etc., of King Yuen & Co. et al. (Chicago) and protests 277728, etc., of Edw. Benneche & Bro. (New York). Opinions by Waite, G. A. Protests sustained as to thick soy. 314; T. D. 29571) followed. United States v. Wo On & Co. (167 Fed. Rep., No. 21198.-ANIMALS FOR BREEDING PURPOSES.--Protest 282156 of F. M. McMahon (Port Townsend). Opinion by Waite, G. A. Protest sustained as to animals for breeding purposes. No. 21199.-MIXED PICKLES AND FISH.-Protest 338349 of Godillot & Co. (New York). Opinion by Waite, G. A. Protest sustained as to mixed fish and pickles. Abstract 20465 (T. D. 29482) followed. No. 21200.-PROTESTS OVERRULED.-Protests 332389, etc., of C. M. Austin Company et al. (Bangor), and protest 307320 of Sucesores de J. M. Blanco & Co. (San Juan). Opinions by Waite, G. A. Protests overruled for want of merit. No. 21201.-PROTESTS ABANDONED.-Protests 345427-28547, etc., of C. D. Stone & Co. et al. (Chicago), protests 355016, etc., of Joseph A. Ball (New Orleans), protests 40340f, etc., of Swift, Billings & Co. (New York), protest 347684 of Geo. Borgfeldt & Co. (Philadelphia), protests 282140, etc., of Geo. S. Bush & Co. (Port Townsend), and protest 342040 of Scruggs, Vandervoort & Barney Dry Goods Company (St. Louis). Protests abandoned. TREASURY DEPARTMENT, May 5, 1909. The appended court decisions are published for the information of collectors of customs and others concerned. JAMES B. REYNOLDS, Assistant Secretary. (T. D. 29728.) UNITED STATES v. ONE HUNDRED AND FIFTY AND SEVEN-TWELFTHS DOZEN LONG GLOVES. U. S. District Court, Eastern District of New York. April 5, 1909. FORFEITURE REMISSION OF PENALTY-CONDITIONS PRECEDENT. No application for remission of the penalty of forfeiture can be instituted under section 17, act of June 22, 1874 (18 Stat., 189), until a forfeiture has been declared; but one is not debarred from making such application by reason of failure to appear as claimant in the forfeiture proceedings, though charged with due notice of such proceedings. ON petition for remission of penalty. [Decision adverse to the Government.] These proceedings were initiated under sections 17 and 18, act of June 22, 1874 (30 Stat., 188-90), reading as follows: SEC. 17. That whenever, for an alleged violation of the customs-revenue laws, any person who shall be charged with having incurred any fine, penalty, forfeiture, * * merchandise seized, * * or shall be interested in any when the appraised value of such merchandise is not less than one thousand * * * * * * * dollars, shall present his petition to the judge of the district in which the alleged violation occurred, or in which the property is situated, setting forth truly and particularly, the facts and circumstances of the case, and praying for relief, such judge shall, if the case, in his judgment, requires, proceed to inquire, in a summary manner into the circumstances of the case, at such reasonable time as may be fixed by him for that purpose. * * * * * SEC. 18. That the summary investigation hereby provided for may be held before the judge to whom the petition is presented, and the facts appearing thereon shall be stated and annexed to the petition, and, together with a certified copy of the evidence, transmitted to the Secretary of the Treasury, who shall thereupon have power to mitigate or remit such fine, penalty, or forfeiture, * * if in his opinion the same shall have been incurred without wilful negligence or any intention of fraud in the person or persons incurring the same. Herman P. Goodstein, for the petitioner. * William J. Youngs, United States attorney (William P. Allen, assistant United States attorney, of counsel), for the United States. CHATFIELD, District Judge: Upon the 20th day of October, 1908, 150, dozen pairs of long kid gloves were seized in this district, and proceedings for their condemnation and forfeiture, on the ground that they had been smuggled into the country and the United States thereby defrauded, were begun in this court by the filing of an information upon the 16th of November, 1908. The marshal duly attached the gloves, published the requisite notice, and a sale was finally had upon the 28th day of December, 1908, at which the gloves brought, less expenses, $1,063. 32, which is now in the registry of the court. The person in whose possession the gloves were at the time of seizure, one Marie De Louise, has since petitioned this court, under sections 17 and 18 of the act of June 22, 1874, which has superseded section 5292 of the Revised Statutes. It appeared from the record in the proceeding for condemnation and forfeiture that no one intervened as claimant or owner of the goods in response to the advertisement by the marshal, and the default in the condemnation proceedings was apparently properly taken. The case of The Princess of Orange (19 Fed. Cas., No. 11431) seems to settle the first question which must be considered-that is, that in relation to certain proceedings for forfeiture no application to remit can be instituted until a forfeiture has been declared. But in the present case, the additional fact that the woman now asking to be relieved as owner of the gloves was the same individual from whose possession they were taken, and who therefore would seem to have admitted, by her failure to claim the property taken, that she had no title therete, raises at once the question whether as between all parties properly charged with notice by the condemnation proceedings, the decree of condemnation renders the issues involved res adjudicata, and prevents any application for remission of the forfeiture under the sections mentioned. This point has been considered in a number of cases, especially from the standpoint of the United States, which might be called upon to pay an award for information leading to the seizure and yet be deprived of the proceeds of the seizure if the forfeiture should be remitted. Such cases are cited below under the other question involved, and the decision of the Supreme Court seems to be that after distribution or payment of the fund in the condemnation proceedings to the collector of customs for the benefit of the United States the rights of informers have been established to such an extent that a remission of forfeiture could not compel the repayment to the claimant of the informer's portion of the award, at least. But as long ago as the case of United States v. Morris (23 U. S., 246) the Supreme Court said: It does not, in terms, give the power to the Commissioners of the Treasury to remit, after condemnation, and yet there can be no doubt the power extends to such cases. In the case of State of Maryland v. Baltimore and Ohio Railroad Company (44 U. S., 534) the doctrine is expressly affirmed, and in the Confiscation Cases (74 U. S., 454) the Supreme Court again said it has been decided That the Secretary had authority, under that act, to remit a forfeiture, at any time before or after a final decree or judgment, until the money was actually paid over to the collector for distribution. In the case of The Laura (8 Fed. Rep., 612; affirmed in 114 U. S., 411) proceedings upon a bond were pending, the bond having been given as security in a condemnation proceeding which had been determined, and the suit having been instituted for penalty incurred by the steam vessel. The same doctrine was reaffirmed, and it was held that the penalty incurred by the steam vessel for violation of the law relating to the carrying of passengers could be remitted, even after a suit had been brought by a private individual to recover the penalty provided. In the case of Peacock v. United States (125 Fed. Rep., 588) the court held thatThe petition can be acted upon after the decree is entered as well as before. The trial by the court in this case was no invasion of the right of the Secretary of the Treasury to grant the remission of the penalty after the judgment was rendered. The present case might be distinguished from all of those cited, in that the claimant was in default, the decree of condemnation was entered, and the rights of all claimants as against the United States thereby determined before the present petition was filed. The cases cited simply decide that the Secretary of Treasury has the power to consider the petition after a decree, but it would seem that if the Congress has protected individuals from the forfeiture of their property, where an injustice may have been done by allowing the forfeiture to be remitted at any time up to the covering of the money into the Treasury (for that is what payment to the collector substantially implies), it would be a hardship to hold that the claimant must at his peril defend the action at law, as well as summarily petition the Secretary of the Treasury through the court for relief. Substantial justice seems to require that the present petition be considered, and that the final decree of distribution in the action be withheld until the petition under the sections mentioned can be heard. (T. D 29729.) Gauge of vermuth. DE FREMERY v. UNITED STATES. PASCAL V. UNITED STATES (4 cases). U. S. Circuit Court, Northern District of California. April 13, 1909. Nos. 13552-6 (suits 1642-6). GAUGE OF VERMUTH-EXCESS IN BOTTLES. Paragraph 296, tariff act of 1897, provides as to vermuth in pint and quart bottles that any excess beyond 1 pint or 1 quart "found in such bottles * * * shall be subject to a duty of five cents per pint or fractional part thereof." Held that the law contemplates that the additional duty should be assessed on each bottle containing an excessive quantity, and not according to the total excess per case or per importation. ON application for review of a decision by the Board of United States General Appraisers. [Decision in favor of the Government.] The decisions below, which are reported as Abstracts 278 and 280 (T. D. 25000) and Abstract 363 (T. D. 25023), affirmed the assessment of duty by the collector of customs at the port of San Francisco on importations by James de Fremery & Co. and Pascal, Dubedat & Co. The opinion in the first-cited case reads as follows: SOMERVILLE, General Appraiser: The questions raised by these protests relate to the proper measurement or gauge of bottles containing vermuth and the assessment of duty based upon such gauge. These questions are precisely the same as those passed on by the Board In re Bush & Co., G. A. 5518 (T. D. 24858). Following that decision, we overrule the protests and affirm the decision of the collector. Stanley Jackson, for the importers. Robert T. Devlin, United States attorney, for the United States. VAN FLEET, District Judge: These cases involve five several appeals from decisions of the Board of General Appraisers sustaining the action of the collector of customs at San Francisco in ascertaining, assessing, and collecting duty on certain importations of vermuth from France. While the appeals are separate, they all involve but one and the same question, and that one of law, the facts not being in controversy; and having been briefed and submitted as one case may be so considered. The importations were by the case of 1 dozen quart bottles each; and the ascertainment of the duty, except as to the rate, which is fixed by the reciprocity treaty with France, fell within the provisions of paragraph 296 of the tariff act of 1897 (30 Stat., 174), by the terms of which, so far as pertinent, vermuth is taxed as follows: In bottles or jugs, per case of one dozen bottles or jugs, containing each not more than one quart and more than one pint, or twenty-four bottles or jugs containing each not more than one pint, one dollar and sixty cents per case; and any excess beyond these quantities found in such bottles or jugs shall be subject to a duty of five cents per pint or fractional part thereof; but no separate or additional duty shall be assessed on the bottles or jugs. The bottles being found to contain an excess in quantity over the specified capacity, amounting to a fraction of a pint each, the collector construed the paragraph to require the imposition of the excess rate upon each bottle-that is to say, in addition to the prescribed case rate he imposed the excess duty prescribed by the treaty upon the excess in each bottle of the importation as a fractional pint. The contention of the importers was that this excess duty should be levied upon the whole or aggregate quantity of the excess found in the importation, at the specified rate per pint or fraction thereof; or as an alternative, that as the unit of duty is the case the duty should be levied on the excess per case at the rate provided, and not on the excess in each bottle assessed separately. Their protests to the Board of General Appraisers having been overruled, they have appealed to this court for a revision, the sole question being as to the propriety of the construction thus given the act. As a matter of first impression, the appellants make a strong and persuasive presentation in favor of their construction of the paragraph in question; and their view is sustained by the United States district court of Porto Rico in the case of United States v. Cerecedo Hermanos (T. D. 27706), where the precise point was involved. But unfortunately for that view the decision of the lower court in the Cerecedo case has, since the submission of these appeals, been reversed by the Supreme Court of the United States (209 U. S., 337; T. D. 28954); and the construction given to the provision by the collector and the Board of General Appraisers sustained. As that case is decisive of the question here, it results that the ruling of the Board of General Appraisers must be affirmed in each instance. Judgments may be entered accordingly. (T. D. 29730.) Chickory root, etc. Appeal directed from decision of Board of United States General Appraisers, Abstract 21052 (T. D. 29690), involving the classification of chickory root, etc. TREASURY DEPARTMENT, May 6, 1909. SIR: I have to acknowledge the receipt of your letter of the 22d ultimo, in which you invite attention to the decision of the Board of United States General Appraisers of the 12th idem, Abstract 21052 (T. D. 29690), involving the classification of certain merchandise, consisting of chicory and figs, chicory and beet root, and beet root and figs, which is used as a coloring and flavoring for coffee. The merchandise under consideration was assessed with duty under paragraph 280 of the tariff act as chicory root prepared, by virtue of section 7 of the tariff act, and the Board sustained the protest that it was properly dutiable under section 6 of the said act as a nonenumerated manufactured article. In view of the importance of the issue, you are hereby directed to file an application for a review of the said decision in accordance with the provisions of section 15 of the act of June 10, 1890. Rubber recovered from old scrap, boots and shoes, etc., dutiable as nonenumerated manufactured article, under section 6, tariff act of 1897. TREASURY DEPARTMENT, May 6, 1909. SIR: The Board of United States General Appraisers in a decision dated the 8th ultimo, Abstract 21030 (T. D. 29690), held that certain reclaimed or recovered rubber from old scrap, boots and shoes, and automobile tires was entitled to admission free of duty under paragraph 579 of the tariff act, relating to crude rubber, scrap rubber, etc., the merchandise having been assessed with duty at the rate of 30 per cent ad valorem as manufactures of rubber under paragraph 449 of the said act. After a careful consideration of this question, the Department is of the opinion that the merchandise is a nonenumerated manufactured article, and you are accordingly directed to classify future importations thereof under section 6 of the tariff act at the rate of 20 per cent ad valorem. Respectfully, COLLECTOR OF CUSTOMS, New York. JAMES B. REYNOLDS, Assistant Secretary. |