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.

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

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.ment must stand unless reversed on reapD. 14,281; and the same ruling was made praisement, or by the Board of General Apby the Board of General Appraisers, Febru-praisers on protest filed. ary 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

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

conclusion reached.

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

But it is said that the appraisement was
Foreign-made bags, then, being dutiable invalid because the examination was not in
at two cents per pound under paragraph 365 accordance with § 2901 of the Revised Stat-
of the act of October 1, 1890, and these bales utes. That section, however, was intended
being permeated with bags of foreign manu-have held that it is not mandatory, and that
for the benefit of the government, and we
facture, the appraiser reported all the bags
as dutiable and the collector so assessed
them.

official acts are not invalidated for want of
strict compliance therewith. Erhardt V.
Schroeder, 155 U. S. 125 [39: 94]; Origet v.
Hedden, 155 U. S. 228 [39: 130].

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 foreignmade 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 "verifica396

"The collector shall designate on the in-
voice at least one package of every invoice,
and one package at least of every ten pack-
ages 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 difshall 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.

Of these seven importations, according to the importers, all the bales in two of them, and ten per cent of those in three of them, were ordered to the appraiser's store, while as to two of them, the number taken for examination fell a little *short of ten per cent; [145] and of all these bales, one hundred were opened. It appeared also that all the merchandise covered by all the invoices was of the same character and description. Since the bales that were opened were found to contain foreign-made bags in large numbers in importations claimed to consist solely of 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 protested on the ground that the duty should treated as dutiable. T. D. 10,098, Syn. 1890. have been levied only on part thereof, and The general policy of the law is indicated tendered evidence to support that contenin the statutory requirements that where tion. goods of different qualities or different values are mingled, or are composed of material of different values, the highest rate of

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 for the manufacture of paper, had been seized. The matter being referred to the Secretary, he ruled in a letter addressed to the collector of customs at Rochester as follows: "If you are satisfied that there was no intention on the part of the importers to conceal the dutiable rags by mingling them with others free of duty, you will not hold them for condemnation, but will allow the parties to separate such as are dutiable from such as are not so, and make entry accordingly, paying the proper duty on the former 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."

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.

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

had sought a re-examination with the view | 493, it was the duty of all persons bringing to an adjustment by proportion, and that in goods claimed to be free out of a class had been had, then the collector might have otherwise dutiable to prove affirmatively the assessed the foreign bags so ascertained and facts constituting the exemption, and that admitted the American bags free from duty. they should separate and designate such merBut it was for the importers, and not for chandise, accompanied by the evidence rethe government, to make the separation on quired by law. This decision was reaffirmed which such a claim for relief would have May 5, 1894 (G. A. 2613), and again in the rested, or, at least, to have invoked the rule case before us. of proportion based on a re-examination.

*On the 27th of April, 1894, which was aft-[147] er this case had been carried before the Board of General Appraisers and the evidence had been taken, the Treasury Department (T. D. 14912) held that in the absence of any provision of law to prevent the importation of both free and dutiable secondhand bags baled together, collectors might pursue the course of examining the designated number of packages, making such investigation of their contents as would reveal the character of the bags contained therein, and then adopt the finding of the appraisers as the basis of the assessment of duty on bales not examined. And since then it has been determined that importers of bags must have bags of foreign and bags of domestic origin packed separately. T. D. 18425.

Notwithstanding the positions taken by the importers are, as we have seen, untenable, we are not disposed to hold, in the light of these rulings of the Department and the special circumstances of the case, that, if the proportion of dutiable bags sufficiently appeared or might reasonably have been ascertained, the circuit court could not have adjudged a recovery in that proportion, or directed a reliquidation.

A re-examination de novo is now impracticable, but it appears to us that the evidence taken by the Board affords an adequate basis for a conclusion. The examiner testified that he found "along about 80 to 86 per cent foreign make;" "in general from seventy-five to eighty per cent;" and that, in his judgment, there was no invoice "that would show over twenty-five per cent of American bags;" yet he also said that he could not give specific details of each invoice, and that he "supposed if seventy-five per cent of the bags in the bale were of foreign manufacture, it carried the whole of them."

But these importers planted themselves on the ground that all these bags were exempt under the act of 1875; or, if not, that the as- In view of this testimony, and considersessment was wholly void for insufficient ex-ing that the statute was not strictly pursued amination; or illegal except as to foreign- in the examination (though we perceive no made bags, which it devolved upon the gov- reason to doubt the faithfulness of the of ernment to segregate from the common mass. ficials in the discharge of their duties), and In the case of Kent, already referred to, it the difficulties in the way of determining was decided by the Board of General Ap- the make of the bags disclosed by the evipraisers, February 3, 1894 (G. A. 2448), dence, and bearing in mind that the taxation that the act of February 8, 1875, was not in of so many of the bags as were of American force, and a reliquidation was ordered for a manufacture operated as a penalty in *spite[148] classification according to the proportion of of the concession that no fraud on the reveforeign and American bags found in two nue was intended, we think it unnecessary bales which by agreement had been examined to remand the cause for another hearing, as representative bales, bag by bag. On the and that the ends of justice will be best subsecond of May, 1894 (G. A. 2610), the Board served by directing a decree for the refundof General Appraisers held, in the matter ing of one-fourth of the duties paid. of Balfour, Guthrie, & Company, that inasmuch as bags made of burlaps were dutiable, except such as are described in paragraph 398

Decree reversed, and cause remanded with a direction to enter such a decree.

The importers contended that they had complied with the law and the Treasury regulations by furnishing certain statements of the shippers as to the origin of the goods, and certain certificates as to their exportation filled with wheat, and that this prima facie evidence of the bags being of the manufacture of this country had not been disproved. But if it were admitted that these papers made a prima facie showing, that showing was overturned when it appeared that foreign-made bags in large numbers made up the importations.

The remedies provided by the act of June 10, 1890, furnish the equivalent for the ac[146]tion against the collector which was originally the remedy for an illegal exaction of duties (United States v. Passavant, 169 U. S. 16 [42: 644]; Schoenfeld v. Hendricks, 152 U. S. 691 [33: 601]); and as in that action, so in this proceeding, the importer must establish the illegality in order to recover back duties paid under protest; and this, in a case like the present, involves, in substantiating that contention, the making proof of the identity of the merchandise. Earnshaw v. Cadwalader, 145 U. S. 247, 262 [36: 693, 699]; Erhardt v. Schroeder, 155 U. S. 125 [39: 95].

Moreover, where merchandise liable in large part to duty is entered as exempt therefrom, the collector has the right to assume that the mingling was intentional and with design to evade the revenue laws; and hence even where the confusion of goods is accidental or not fraudulent in fact, and forfeiture is not incurred, it yet devolves on the importer to show what part of the whole he contends should not be taxed.

172 U. S.

I. R. HARKRADER, Sheriff of Wythe Coun- | fully represents and shows to this honorable ty, Virginia, Appt.,

v.

court that he is a citizen of the United States
of America and a citizen of the state of North
Carolina, and a resident of the city of Wil-
mington in that state; that he is unjustly
and unlawfully detained and imprisoned in
the county jail of Wythe county, Va., at
rader, sheriff of said county, and as such
Wytheville, Va., in the custody of I. R. Hark-
the warden and keeper of said jail, by virtue
of a warrant or order of commitment made
by the county court of Wythe county, Va.,
at Wytheville, Va., on Monday, the 10th day
of August, 1896, a copy of which order or
warrant of commitment is hereto annexed,
marked Exhibit "A."

H. G. WADLEY.

(See S. C. Reporter's ed. 148-170.)

Final order discharging prisoner from custody on writ of habeas corpus, appealable -final order injunction against criminal prosecution-jurisdiction of court of equity -staying proceedings in state court in

criminal case.

1. A final order overruling the return of the sheriff and discharging a prisoner from custody on writ of habeas corpus, made at a stated term of the circuit court of the United States, is appealable, although the original order was made at chambers.

|

2. An order discharging a prisoner on writ of
habeas corpus, which, if valid, takes away his
custody from the state court and puts an

Your petitioner would now show that on a
petition filed by him before the Honorable
Charles H. Simonton, United States Circuit
Court Judge for said fourth circuit, em-
bracing said western district of Virginia, on
the 5th of August, 1896, the said honorable
judge, Simonton, entered an order on said
petition allowing it to be filed in the equity
cause of H. G. Wadley v. Blount & Boynton
et als., pending in said court, and on said
petition, duly verified and sustained by affi-
davits, the said honorable judge, Simonton,
on said 5th day of August, 1896, in accord-
ance to the prayer of said petition, granted
an injunction against Robert Sayers, the com-
appointed and the civil liability of such off-monwealth's attorney of Wythe county, Va.,
cer was in litigation.
J. A. Walker and C. B. Thomas, special pros-

4. A court of equity, although having jurisdic-ecutors, and the creditors embraced in said
tion over person and property in a case pend-petition, together with their counsel, from

ing before it, is not thereby vested with juris

diction over crimes committed in dealing with

such property by a party before the civil sult
was brought, and cannot restrain by injunc-
tion proceedings regularly brought in a crim-
inal court having jurisdiction of the crime

all further proceedings in said county court
of Wythe upon an indictment obtained
against the said H. G. Wadley in said county
court on the 16th day of May, 1894, and es-
pecially from exacting or requiring any bail
or any commitment to imprisonment of said
H. G. Wadley on said indictment in said

and of the accused.

end to his imprisonment under the process

of that court, is final for the purpose of an

appeal to this court, although he is dis

charged only pending an injunction.

8.

An injunction against a criminal prosecution in a state court under a valid state law, of a bank officer for embezzlement, cannot be granted by a Federal court because it had previously obtained jurisdiction in equity

cases in which a receiver of the bank had been

5. A circuit court of the United States sitting
in equity in the administration of civil reme-county court.
dies has no jurisdiction to stay by injunction
proceedings pending in a state court in the

A certified copy of the said petition which
name of the state to enforce the criminal of August, 1896, is herewith filed, marked
was presented to Judge Simonton on the 5th[150]

laws of such state.

Exhibit "B", and a certified copy of the
said order of Judge Simonton of the 5th of
August, 1896, on said petition is likewise

[No. 41.]

Argued October 17, 1898. Decided December herewith filed, marked Exhibit "C." 5, 1898.

APPEAL from

an order of the Circuit Court of the United States for the Western District of Virginia discharging H. G. Wadley, a prisoner, from custody, on writ of habeas corpus. Reversed and cause remanded with directions to restore the custody of said Wadley to the sheriff of Wythe County, Virginia.

Statement by Mr. Justice Shiras: In the circuit court of the United States for the western district of Virginia, one H. [49]G. Wadley filed a petition, signed and sworn to August 10, 1896, praying for the allowance of a writ of habeas corpus. The petition was as follows:

To the Honorable Circuit Court of the United
States in and for the Western District of
Virginia, at Abingdon, Va., Fourth Cir-
cuit.

Your petitioner, H. G. Wadley, respect

Your petitioner, H. G. Wadley, would fur31st of January, 1895, on ther show that heretofore, to wit, on the theretofore awarded by him to your petitionan injunction er in his case of H. G. Wadley v. Blount & Boynton et als.. in this court, by the Honorable Nathan Goff, he, by a decree of that date, tioner by refusing to dissolve said injunction fully sustained the contention of your petiand continuing it in full force, and by said decree enjoined and prohibited all further prosecution of said indictment in the county court of Wythe county, Va., as shown by copy of the said decree and the opinion of the Honorable Nathan Goff, herewith filed, marked Exhibit "D.”

Your petitioner had hoped that after this final decree in the United States circuit court by the Honorable Nathan Goff on said injunc tion, prohibiting all further prosecution of said indictment, that the order of that honorable court would have been obeyed; but that was a vain conjecture, as the said Robert

Petitioner avers that the said indictment upon which petitioner was committed was illegally and improperly obtained, in violation of petitioner's rights as a citizen of the United States, by the counsel for the said credit-go hence without bail.