in this case has never been before this court. | affirmed, as to that point, by this court. In In some of the former cases this court de- this decision now before us it has given no cided the general proposition that the coupon effect to subsequent legislation, and not havlegislation was valid and created a contract. ing done so, but simply decided a question After it had thus decided, a case came before of local law regarding its own Constitution, it where a subsequent statute provided that, the state court has given no decision which in the case of the school tax, coupons should raises a Federal question, and therefore none not be received in payment thereof. The that this court can review. state court had decided that the coupon stat- Under all the circumstances I can only see ute was invalid so far as it related to the a determination to take jurisdiction in this school tax, because the Constitution in exist-case simply because this court, as it is said, ence when the coupon acts were passed required in substance that such tax must be paid in lawful money, and consequently the coupon act was unconstitutional as to such [132]tax. This court affirmed that judgment. Vashon v. Greenhow, 135 U. S. 662, 713 [34: 304, 320]. Part of the coupon statute was thus held invalid by the state court and also by this court.

The state had also passed a subsequent statute providing that the tax for a license to retail liquor should be paid in lawful money. This court (affirming in that respect the court below) held that act valid, because it was in effect a regulation of the liquor traffic, and the state could at all times legislate upon that subject, notwithstanding the coupon acts and the alleged contract therein created. Hucless v. Childrey, 135 U. S. 662, 709 [34: 304, 319]. Both of these decisions were made subsequently to the time when this court had held the coupon statute valid, and that a valid contract was therein created.

The state court has now decided in this case that as the coupon acts were invalid as to the payment of the school tax in coupons (a proposition concurred in by this court), the result was that the whole acts were invalid, that they could not stand partly valid and partly void, and that the whole coupon scheme was unconstitutional. This phase of the controversy has never before reached this court, and the court has therefore never before decided this particular point. It has said, generally, that the legislation was valid, but it said SO only in cases where the general power of the legislature to enact the coupon statutes was in question, and it has never decided squarely the point that if the coupon acts be unconstitutional in some particulars they are nevertheless valid in all others. The fact is alluded to simply as matter of history.

But even if it had, that fact confers no jurisdiction upon this court to review this judgment, if it otherwise is without it. In other words, because this court has hereto

fore decided the question of the validity of

the contract, in cases where it had jurisdiction, that fact furnishes no foundation for its jurisdiction in this case, where the state court has given no effect to any subsequent legislation. Prior decision is not the foundation of jurisdiction. What I say is, that whether there have been two or more decisions, is wholly immaterial; jurisdiction cannot be taken because it is said that in a second or subsequent decision the state court [133]did not follow its first decision in regard to the contract, although that decision had been

has in cases in which it had jurisdiction decided the question differently from the decision in this case by the state court. That ground does not give jurisdiction, and that is the only ground that does exist.

The writ of error should be dismissed for want of jurisdiction.




(See S. C. Reporter's ed. 133-148.)

Appraiser of imported goods-when ap praisement is valid-duty on American bags-foreign-made bags.

1. The judgment of an appraiser after actual examination, that imported goods are not as described, but fall within a different classification, must stand as against the importer, unless reversed on reappraisement, or by the board of general appraisers on protest filed.



An appraisement is not invalid as against the importer because the examination was not made in accordance with U. S. Rev. Stat. § 2901, which is intended for the benefit of the government.

The separation of American-made bags, which are free from duty, from foreign-made bags imported in the same bales, should be made by the importer if he wishes to obtain the exemptions on the former, and he cannot require the separation to be made by the government.

The prima facie showing that bags imported are of American manufacture is overturned when it appears that foreign bags in large numbers are included in the same bales with those of American make.

[No. 20.]

Argued and Submitted April 20, 1898. Restored to docket, and certiorari to bring up entire record ordered April 25, 1898. Submitted October 11, 1898. Decided December 5, 1898.

States Circuit Court of Appeals for the

WRIT of certiorari to the United

Fifth Circuit, after certification of questions to this court, to review a decree of the Circuit Court of the United States for the Fifth Circuit reversing the decision of the board of general appraisers and decreeing that certain duties paid by Ranlett & Stone on imported bags be refunded and that the liquidation of duties before made be set aside and the duties reliquidated. Reversed, with directions to enter a decree for the refunding of one fourth of the duties paid.

proper officer of the customs at the foreign port from which the reimportation was made, and authenticated by the consul of the the United States, that such merchandise was imported from the United States in the condition in which it is returned, and that

Statement by Mr. Chief Justice Fuller: [134] *Ranlett & Stone imported at the port of New Orleans, from Liverpool, England, 2,925 bales of grain bags, known as cental bags, each bale containing one thousand bags, or 2,925,000 in all, by several vessels, the entries running from August 14, 1893, to Jan-it has not been advanced in value or improved uary 15, 1894.

The bags were entered free of duty under paragraph 493 of the act of October 1, 1890 (26 Stat. chap. 1244, p. 603), as bags of American manufacture returned to the United States.

That paragraph is as follows: "Articles the growth, produce, and manufacture of the United States, when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means; casks, barrels, carboys, bags, and

other vessels of American manufacture ex

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ported filled with American products, or exported empty and returned filled with foreign products, including shooks when returned as barrels or boxes; . but proof of the identity of such articles shall be made, under general regulations to be prescribed by the Secretary of the Treasury; and if any such articles are subject to internal tax at the time of exportation such tax shall be proved to have been paid before exportation and not refunded: Provided, That this paragraph shall not apply to any article upon which an allowance of drawback has been made, the reimportation of which is hereby prohibited except upon payment of duties equal to the drawbacks allowed. [135] *The general regulations prescribed by the Secretary of the Treasury under this paragraph contained the following provisions: "Art. 331. Articles of the growth, produce, and manufacture of the United States, exported to a foreign country and returned without having been advanced in value or improved in condition, by any process of manufacture or other means, and upon which no drawback or bounty has been allowed, are entitled to entry free of duty, but this priv ilege does not extend to articles exported in bond from a manufacturing warehouse and afterward returned to this country. The exportation must be bona fide, and not for the purpose of evading any revenue law.

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"If returned to the port of original exportation, the fact of regular clearance for a foreign destination must be shown by the records of the customs, and by the declaration of the person making the entry. But when the reimportation is made into a port other than that of original exportation, there shall be required, in addition to the declaration, a certificate from the collector and the naval officer, if any, of the port, where the exportation was made, showing the fact of exportation from that port.

in condition by any process of manufacture or other means."

"Art. 335. Casks, barrels, carboys, bags, and vessels of American manufacture, exported filled with American products, or exported empty and returned filled with foreign products, including shooks when returned as barrels or boxes, *are free of duties,[136] but in case drawback has been allowed upon the exportation of any such articles, they shall on importation be subject to a duty equal to the drawback. Proof of the identity of such articles must be made, and if any of them were subject to internal tax at the time of exportation, such tax shall be proved to have been paid before exportation and not refunded, or duty will accrue.

"Art. 336. Before entry, the following proof shall be required by the collector:

"First. A certificate as follows from the shipper in triplicate, attested by a consul or other proper officer authorized to take affidavits, as follows:

or were

"I hereby certify, under oath, that, to the best of my knowledge and belief, the thereinafter specified, are truly of the manufacture of the United States, t exported from the United States, filled with † -, and that it is intended to reship the same to the port of in the United States, § -on board the now ly. ing in the port of I further certify that, to the best of my knowledge and belief, the actual market value of the articles herein named, at this time and in the form in which the same are to be exported to the United States, is as follows t

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"If the packages are empty, Insert statement of the facts, as 'and were exported from the United States filled with the produce of that country.'

"If the packages contain foreign merchan

merchandise they contain.

“Art. 332. To guard against fraud, and to dise, insert filled with and a description of the insure identity, the collector shall require, in addition to proof of clearance, the production of a statement, certified by the

"This blank is to be filled only when the merchandise contained in the packages is subject to a duty ad valorem."

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"Fifth. Verification after examination, by the appraiser, with an indorsement stating whether the articles are of domestic or of for eign manufacture.

"Such bags and other coverings exported to be returned should, when practicable, be marked or numbered, in order that they may be identified on their return; and the marks or numbers should appear on the shipper's manifest upon which they are exported." When the respective shipments arrived in this country free entry was made by the importer and evidence furnished regarding the right to free entry and the character of the goods. Samples of the respective invoices were then sent to the appraiser's office and

examined as follows:

From one entry of 600 bales, 70 were ordered to the appraiser's store and 18 of that number were opened by him;

Of another entry of 650 bales, 43 were ordered to the store and 19 were opened;

Of a third entry of 325 bales, 38 were ordered to the store and 13 were opened; Of a fourth entry of 850 bales, 85 were ordered to the store and 16 were opened;

Of a fifth entry of 300 bales, 21 were ordered to the store and 14 were opened;

Of a sixth entry of 100 bales, 100 were ordered to the store and 10 were opened; And of a seventh entry of 100 bales, 100 were ordered to the store and 10 were opened.

did not come under the provisions of section
2910 of the Revised Statutes.

The Board of General Appraisers sus-
tained the action of the collector. General
Appraisers' Decisions, No. 2623.

The importers applied for a review of this
decision to the circuit court of the United

States for the fifth circuit, which, without
taking any additional testimony, reversed
the decision of the board, and entered a de-
cree that the duties paid by Ranlett &
Stone, namely, two cents per pound on the
several consignments of bags, enumerating
them, be refunded; "that the examination
heretofore made of said bales of bags is void
and not in conformity to law or the regula-
tions of the Treasury Department, and any
liquidation of duties based on said examina-
tion is illegal and void, and the liquidation
of duties heretofore made be set aside, and
the money received from Ranlett & Stone[139]
as duties be refunded as aforesaid; and the
court doth further order and decree that the
collector direct a re-examination of said
bales of bags to be made according to law,
and on such re-examination to reliquidate
the duties which may be lawfully due there-

The United States appealed from the de-
cree to the circuit court of appeals, which
certified certain questions to this court,
whereupon a writ of certiorari was issued
and the entire record brought up.

Messrs. Henry M. Hoyt, Assistant Attorney General, and W. J. Hughes for appellant on first and second argument and submission.

Mr. William A. Maury for appellees on first argument and submission.

Messrs. Thomas J. Semmes and William A. Maury for appellees on second submission.

Mr. Chief Justice Fuller delivered the

opinion of the court:

*In respect of these importations, it must[139] be assumed that the bags were not in fact all of American manufacture or substantially so.

[138] *The examination of the bales was made by the appraiser, assisted by an examiner. The appraiser reported as to each importation that the bales contained bags of foreign manufacture, subject to duty, and thereupon the collector, by direction of the Treasury Department, at the request of the importers, in order to obtain possession of the goods, made impost entries, assessing duties at the rate of two cents per pound on the entire consignment, under paragraph 365 of the act The opinion of the General Appraisers of 1890, 26 Stat. at L. 593, as "bags for grain stated that "it was admitted that there were made of burlaps." The importers protested bags of foreign manufacture and of Ameriagainst the "decision, liquidation, and rate can manufacture, all indiscriminately minand amount of duties assessed," on the gled together, no attempt being made on engrounds: That the bags were entitled to try or afterwards to separate from these free entry under paragraph 493 of the free enormous totals of goods of the same class list as bags of American manufacture, exthose claimed to be relieved from duty acported filled with American products; that, companied by the proof establishing such inif not free under that paragraph, they were in some cases examined every bale of the dulgence." The examiner testified that he entitled to free entry under the provisions whole entire invoice;" that he used his judgof section seven of the act of February 8, ment "to try to open sufficient to get at the 1875, and the regulations for the free entry classification of the goods;" and that where of bags other than of American manufacture, he opened the bales and examined them he prescribed by the Secretary of the Treasury found of foreign make in general "from sev thereunder; and that the goods were not enty-five to eighty per cent." Indeed we do fairly and faithfully examined by the ap-not understand the importers to deny that praisers; that the assessment of two cents these importations contained foreign-made per pound because the bales contained a mix-bags. ture of foreign and American bags was incorrect, and that the goods being all of one duty was imposed on grain bags, except value, whether of foreign or American make, those manufactured in the United States [140]

Under title 33 of the Revised Statutes a

and exported containing American products, | tion, after examination, by the appraiser, declaration having been made of intent to with an indorsement stating whether the return the same empty. R. S. §§ 2504, 2505. articles are of domestic or foreign manufacBy section seven of the act of February 8, ture." By section two of the customs ad1875 (18 Stat. at L. 307, 308, chap. 36), it ministrative act of June 10, 1890, chap. 407, was provided "that bags, other than of all invoices must contain a correct descripAmerican manufacture, in which grain shall tion of the merchandise, signed by the manhave been actually exported from the United ufacturer or by the person owning or shipStates, may be returned empty to the United ping the same, or by his duly authorized States free of duty, under regulations to be agent, which under section five might be prescribed by the Secretary of the Treasury." adopted by the domestic consignee or owner, Section six of the tariff act of March 3, who by section nine was made liable for the 1883 (22 Stat. at L. 488, 489, chap. 121), employment or use of any fraudulent or false provided that on and after July 1, 1883, invoice or statement by means whereof the "the following sections shall constitute and United States may be deprived of lawful be a substitute for title 33 of the Revised duties. Under section ten it was the duty of Statutes." The provision in regard to the appraiser to ascertain, estimate and empty returned bags of American manufac- appraise the actual market value and wholeture was re-enacted in substance in the free sale price of merchandise imported, and the list, but that of section seven of the act of number of yards, parcels, and quantities. 1875 was omitted, and bags, excepting bag- And evidently this ascertainment involves ging for cotton, were made dutiable. character and quality as well as value, since the statement, invoice. or entry must be true in respect of the character of the goods as well as of their value. 26 Stat. at L. 131, 136.

Paragraph 493 of the tariff act of 1890 retained the same exemption from duty upon returned empty bags of American manufacture and was silent in regard to returned empty foreign-made bags which were filled when exported.

In view of this legislation, acting Attorney General Maxwell advised the Secretary of the Treasury, July 20, 1893, that the provision of section seven of the act of 1875, exempting foreign-made grain bags, was repealed. 20 Ops. Atty. Gen. 630. This ruling was followed and approved by the Treasury Department, August 22, 1893, Syn. T. D. 14,281; and the same ruling was made by the Board of General Appraisers, February 3, 1894, in Kent v. United States, G. A. 2448, as it had been in prior decisions; by Judge Lacombe, in effect, April 21, 1891, in Re Straus, 46 Fed. Rep. 522; and specifically by Judge Townsend in Kent v. United States, 68 Fed. Rep. 536, June 2, 1895. The latter case was carried to the circuit court of appeals for the second circuit and the decree affirmed, April 7, 1896, 38 U. S. App. 554. The rule applied was that "when a later statute is a complete revision of the subject to which the earlier statute related, and the new legislation was manifestly intended as [141]a substitute for the former legislation, the prior act must be held to have been repealed;" and the opinion of Judge Shipman leaves nothing to be added in support of the conclusion reached.

Foreign-made bags, then, being dutiable at two cents per pound under paragraph 365 of the act of October 1, 1890, and these bales being permeated with bags of foreign manufacture, the appraiser reported all the bags as dutiable and the collector so assessed them.

On the question of identity, then (which under the law includes the question of country of manufacture), the production of the papers required by the regulations are not conclusive proof, and if the appraiser, after actual examination had, decides that the[142] goods are not as described, but are such, in fact, as to fall within a different classification, and so reports to the collector, his judg ment must stand unless reversed on reappraisement, or by the Board of General Appraisers on protest filed.

As to these bags, the examiner reported to the appraiser his finding of a very large percentage of foreign-made bags in the shipments, and the appraiser reported that he found the shipments to contain bags of foreign manufacture and that the importations were dutiable at two cents per pound under paragraph 365.

If the importers were not satisfied with the examination made, and objected to the competency of the examiner and appraiser, they should have applied for a re-examination; but they did not do this, nor did they offer evidence before the Board of General Appraisers tending to establish an objection on that ground.

But it is said that the appraisement was invalid because the examination was not in

accordance with § 2901 of the Revised Stat-
utes. That section, however, was intended
for the benefit of the government, and we
have held that it is not mandatory, and that
official acts are not invalidated for want of
strict compliance therewith. Erhardt v.
Hedden, 155 U. S. 228 [39: 130].
Schroeder, 155 U. S. 125 [39: 94]; Origet v.

The section reads thus:

But the importers insist that this assessment was illegal because of the insufficiency or invalidity of the examination; or of the absence of a statute specifically applicable; or because it was not confined to foreign-voice at least one package of every invoice, made bags.

Paragraph 493 required proof of the identity of articles entered as exempt thereunder, and this was not only repeated in the regulations, but article 336 required "verifica

"The collector shall designate on the in

and one package at least of every ten packages of merchandise, and a greater number should he or either of the appraisers deem it necessary, imported into such port, to be 'opened, examined and appraised, and shall

order the package so designated to the pub-duty shall be imposed, as in the familiar inlic stores for examination; and if any pack- stances of the classification of articles comage be found by the appraisers to contain any posed of two or more materials, at the rate article not specified in the invoice, and they of duty charged on the component material or a majority of them shall be of opinion of chief value; in section 2911 of the Revised that such article was omitted in the invoice Statutes, that whenever articles composed with fraudulent intent on the part of the wholly, or in part, of wool or cotton, of simshipper, owner, or agent, the contents of the ilar kind, but different quality are found in entire package in which the article may be, the same package charged at an average shall be liable to seizure and forfeiture on price, the appraisers shall adopt the value [143]conviction thereof before any court of com- of the best article as the average value; in petent jurisdiction; but if the appraisers section 2912, that when bales of wool of dif shall be of opinion that no such fraudulent ferent qualities are embraced in the same Intent existed, then the value of such article invoice at the same prices whereby the avershall be added to the entry, and the duties age price is reduced more than ten per thereon paid accordingly, and the same shall centum below the value of the bale of the be delivered to the importer, agent, or con- best quality, the value of the whole shall be signee. Such forfeiture may, however, be appraised according to the value of the bale remitted by the Secretary of the Treasury on of the best quality, and that no bale, bag, or the production of evidence satisfactory to package shall be liable to a less rate of duty him that no fraud was intended." in consequence of being invoiced with wool of lower value; and in section 2910, that "when merchandise of the same material or description, but of different values, is invoiced at an average price, and not otherwise provided for, the duty shall be assessed upon the whole invoice at the rate to which the highest valued goods in such invoice are subject."

Assuming that fraudulent intent was lack ing, these bags were not held for forfeiture, but the collector, in effect, added them all to the entries, leaving it to the importers to prefer such claim to exemption as they might consider they were entitled to.

Section 2901 was brought forward from section 32 of the act of March 2, 1861 (12 Stat. at L. 197, chap. 68), and on December 28, 1868, Mr. Secretary McCulloch made the following ruling.

Numerous provisions exist in the statutes and regulations designed to protect the Public Treasury from the bringing in of goods at a less rate of duty than they ought to pay under cover of association with goods properly subject to the lower amount; and the protection intended to be secured ought, on principle, equally to be accorded in respect of dutiable goods invoiced indiscriminately with free goods.

At that time the law imposed a duty of twelve cents per pound on all woolen rags, and admitted free rags composed of cotton and linen and intended for the manufacture of paper, and twenty-one bales of rags brought into the country from Canada and containing at least forty per cent of woolen rags, though imported as containing rags Of these seven importations, according to for the manufacture of paper, had been the importers, all the bales in two of them, seized. The matter being referred to the and ten per cent of those in three of them, Secretary, he ruled in a letter addressed to were ordered to the appraiser's store, while the collector of customs at Rochester as fol- as to two of them, the number taken for exlows: "If you are satisfied that there was amination fell a little *short of ten per cent; [145] no intention on the part of the importers to and of all these bales, one hundred were conceal the dutiable rags by mingling them opened. It appeared also that all the merwith others free of duty, you will not hold chandise covered by all the invoices was of them for condemnation, but will allow the the same character and description. Since parties to separate such as are dutiable from the bales that were opened were found to such as are not so, and make entry accord- contain foreign-made bags in large numbers ingly, paying the proper duty on the form-in importations claimed to consist solely of er class. These instructions are to be considered as applicable only to such bales as contain so large a proportion of woolen rags as to render it worth while to collect a duty. Forty per cent of woolen rags is, however, much too large a percentage to be allowed entry as free goods."

American made bags, it is not easily seen how the examination of a larger number of bales would have affected the result arrived at by the appraiser. And, as before observed, if the importers believed that they had sustained injury because more bales were not opened, they should have applied Again, in July, 1890, it was held by the for a re-examination, and they might have Treasury Department that where cargoes of produced evidence before the Board of Genanthracite and bituminous coal were im- eral Appraisers to maintain their claim that ported, so mixed as to render it impracti- the bags were American made notwithstand[144]cable to separate the free from the dutiable ing the return of the examiner and the recoal for the purpose of the accurate weigh-port of the appraiser, or they might have ing of each kind, the whole cargo should be treated as dutiable. T. D. 10,098, Syn. 1890. The general policy of the law is indicated in the statutory requirements that where goods of different qualities or different values are mingled, or are composed of material of different values, the highest rate of

protested on the ground that the duty should
have been levied only on part thereof, and
tendered evidence to support that conten-

If they had furnished evidence of the num-
ber of bags of domestic manufacture and the
number of bags of foreign manufacture, or

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