DICKSON v. UNITED STATES. (Circuit Court, S. D. New York. May 23, 1904.) No. 3,456. 1. CUSTOMS DUTIES-LEGALITY OF PROTEST-RELIQUIDATION UNDER DECISION OF GENERAL APPRAISERS. In reliquidating an entry under a decision of the Board of General Appraisers sustaining an importer's protest, the collector withheld a portion of the duty that had been improperly assessed, and within 10 days thereafter the importer filed a protest against the collector's action. Held, that the protest was within the requirements for protests as established by section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933]. On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review overruled a protest made by George M. Dickson against the action of the collector of customs at the port of New York in reliquidating an entry under a decision of the Board of General Appraisers. The decision under which the collector proceeded had sustained a protest which the importer had filed at the time of the original liquidation of the entry, and which made the contention that the collector, in assessing duty on certain ginger ale in bottles, had erred in including the value of the bottles in that of the ale. As in this liquidation the bottles and their contents had been subjected to the same rate of duty, no question bad arisen as to whether the amount of certain items in the invoice for corking, wiring, etc., should be treated as part of the value of the bottles, or of that of their contents. The importer did not raise that point in his protest, and the board made no reference to it when, in deciding the protest, it held that no duty should have been assessed on the bottles. The collector, in reliquidating the entry under the decision of the board, treated said items as pertaining wholly to the ale, and refused to include their value in the value of the bottles on which duty was refunded. Thereupon the importer, within 10 days after reliquidation, filed the protest which is the subject of these proceedings; contending that said items should have been treated as part of the value of the bottles, and have participated in the refund. It was insisted on the part of the collector that this contention should have been made at the time of the original liquidation, in the protest then made, and that a protest filed at the time of a reliquidation made in response to a decision of the Board of General Appraisers does not meet the requirements of section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], where it is provided that protests shall be filed within 10 days after the collector's ascertainment and liquidation of duties. This contention was upheld by the board in an opinion reading as follows (Somerville, General Appraiser): "This protest covers an importation of bottles containing ginger ale, and claims that the items of corking and wiring are not dutiable under paragraph 248 of the tariff act of August 27, 1894, c. 349, 28 Stat. 526. This claim is well founded, under previous decisions. In re King, G. A. 5,290, T. D. 24,262; West v. United States (C. C.) 119 Fed. 495. The collector, however, reports, and the importer has not sought to controvert the statement, that the present protest is filed against a liquidation made by him under a decision and order of this board on previous protests filed by the same importer. In short, it is shown that the present proceeding is an attempt to recover on claims not made in the preceding protests. Under the ruling of the courts and this board, the importers cannot be permitted to raise new questions by a second protest. Stern v. United States (C. C.) 77 Fed. 607; In re Duke, G. A. 3,823, T. D. 17,948. The present protest having been filed more than ten days after the liquidation of the entry and the collector's decision contemplated by section 14 of the act of June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], it comes too late for consideration. It is overruled, and the decision of the collector affirmed." Edward Hartley, for importer. Charles Duane Baker, Asst. U. S. Atty. TOWNSEND, Circuit Judge. The appellant herein imported under the act of 1894 ginger ale in bottles, upon which the collector imposed a duty of 20 per cent. on the total value of bottles and contents. The board of general appraisers sustained a protest of the importer, holding the bottles to be free, on the authority of U. S. v. Dickson, 73 Fed. 195, 19 C. C. A. 428. The collector, in refunding the excess duty, on the order of the board, withheld the duty collected on the value of corking, wiring, etc., against which the appellant herein had protested. The board found that the claim was well founded, on the authority of West v. U. S. (C. C.) 119 Fed. 495, but held that, as the protest was filed against the liquidation by the collector under a decision of the board, the importer cannot now raise any new questions by a second protest. This conclusion does not seem to be well founded. In the first place, this protest does not raise a new question, because the decision that no additional duty could be assessed covered the corks and wires as well as the bottles. Furthermore, upon a reliquidation the previous liquidation is abandoned, and the time to protest does not begin to run until such reliquidation. Robertson v. Downing, 127 U. S. 607, 8 Sup. Ct. 1328, 32 L. Ed. 269. The technical objections made to this claim seem to be contrary to the decisions of the courts, and are confessedly contrary to the decisions of the Board of General Appraisers. See G. A. 5,346, 5,406. The decision of the Board of General Appraisers is reversed. GARTNER & FRIEDENHEIT v. UNITED STATES. (Circuit Court, S. D. New York. June 2, 1904.) 1. CUSTOMS DUTIES-CLASSIFICATION-SILK RIBBONS-TRIMMINGS. On Application for Review of a Decision of the Board of General Appraisers. These proceedings were brought by Gartner & Friedenheit to secure the reversal of an affirmance by the Board of General Appraisers (G. A. 5,460, T. D. 24,756) of the assessment of duty by the collector of customs at the port of New York. C. A. Mountjoy (James M. Beck, of counsel), for the importers. TOWNSEND, Circuit Judge. The merchandise in question is represented by 13 samples of ribbons, differing in quality and character, all of silk, or of which silk is the material of chief value. They were classified for duty as silk trimmings, under the provisions of paragraph 390 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]). The importers claim that they should be classified under paragraph 391 (30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]) of said act as "manufactures of silk or of which silk is the component material of chief value, not specially provided for." The single question presented is whether these articles are in fact trimmings. The Board of Appraisers found that the ribbons were applied to a variety of uses, some of which were of the character of trimmings, while others-such as the use for tying bonbon boxes, and as drawing strings for underwear and in corsets, were not in the nature of trimmings. The board also found that, in most instances where used for trimming, they were cut, tied, and otherwise fashioned for their ultimate use. In these circumstances, I should feel inclined to follow the decision of Judge Wheeler in Robinson v. U. S. (C. C.) 121 Fed. 204, where it was held that such articles did not become trimmings until they were so fashioned as to be applied to the articles to be trimmed. The counsel for the United States contends, however, that Judge Wheeler's opinion is contrary to the decisions of the Supreme Court of the United States in the Hat Trimmings Cases, and in support of said contention cites the following: Hartranft v. Langfelt, 125 U. S. 128, 8 Sup. Ct. 732, 31 L. Ed. 672; Robertson v. Edelhoff, 132 U. S. 614, 10 Sup. Ct. 186, 33 L. Ed. 477; Cadwalader v. Wanamaker, 149 U. S. 532, 13 Sup. Ct. 979, 983, 37 L. Ed. 837; Walker v. Seeberger, 149 U. S. 541, 13 Sup. Ct. 981, 37 L. Ed. 839 ; Hartranft v. Meyer, 149 U. S. 544, 13 Sup. Ct. 982, 983, 37 L. Ed. 840. It appears, however, that in each of these cases the question as to whether the articles were or were not trimmings was not decided by the court as a matter of law, but was left as a question of fact to be determined by the jury, and that, the jury having determined this question of fact, the court applied the law to such finding. In the present case the testimony establishes that the chief uses of these articles are not for trimming hats or dresses, and that they are not in fact or commercially within the class of goods known as trimmings. It further appears by a comparison of paragraph 339 (Schedule J, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662]) and paragraph 320 (Schedule I, 30 Stat. 179 [U. S. Comp. St. 1901, p. 1661]) of said act that Congress has made a distinction in the case of cotton goods between trimmings and ribbons. It also appears from the rulings of the Treasury Department that ribbons of the kind in question here have been uniformly held to be dutiable as manufactures of silk. The decision of the Board of General Appraisers is reversed. UNITED STATES ▼. ROESSLER & HASSLACHER CHEMICAL CO. (Circuit Court, S. D. New York. June 2, 1904.) No. 3,416. - SIMILITUDE - UN 1. CUSTOMS DUTIES-CLASSIFICATION-FERROCHROME-FERROTUNGSTEN-FERROMOLYBDENUM FERROVANADIUM — FERROMANGANESE WROUGHT METALS. Held, that certain alloys of iron and mineral substances known as ferrochrome, ferrotungsten, ferromolybdenum, and ferrovanadium are not duti able as "metals unwrought," under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 183, 30 Stat. 166 [U. S. Comp. St. 1901, p. 1645], but are dutiable at the rate applicable to the ferromanganese, enumerated in paragraph 122 of said act (30 Stat. 159 [U. S. Comp. St. 1901, p. 1636]), which they resemble in quality and use, within the meaning of the so-called similitude clause in section 7 of said act (30 Stat. 205 [U. S. Comp. St. 1901, p. 1694]). Application for Review of a Decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York. Charles Duane Baker, Asst. U. S. Atty., and Charles Fuller, Special Asst. U. S. Atty. Frederick W. Brooks, for importers. TOWNSEND, Circuit Judge. The merchandise in question consisted of ferrochrome, ferrotungsten, ferromolybdenum, and ferrovenadium, and was assessed for duty at the rate of 20 per cent. ad valorem as a "metal unwrought," under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 183, 30 Stat. 166 [U. S. Comp. St. 1901, p. 1645]. The importers protested, claiming that said merchandise was properly dutiable at the rate of $1 per ton, the rate imposed by paragraph 122 of said act (30 Stat. 159 [U. S. Comp. St. 1901, p. 1636]) on "ferromanganese," etc., by virtue of the similitude clause in section 7 of said act (30 Stat. 205 [U. S. Comp. St. 1901, p. 1694]). The Board of Appraisers sustained the protest. Counsel for the United States contends that upon the evidence herein these metals are not wrought, because they are now in the first state in which they appear after reduction from the ore; that is, the first stage in which they appear as pure metals. There is nothing to show that they have been subjected to any process different from that proved on the former hearings in this court. I shall therefore follow the decision of this court in Dana v. U. S. (C. C.) 116 Fed. 933, that they are not metals unwrought. This fact being proved, they fall within the decision in Dana v. U. S. (C. C.) 91 Fed. 522, affirmed in U. S. v. Dana, 99 Fed. 433, 39 C. C. A. 590, that they are similar in quality and use to ferromanganese. The decision of the Board of General Appraisers is therefore affirmed. THOMPSON et al. v. SCHENECTADY RY. CO. et al. (Circuit Court of Appeals, Second Circuit. April 5, 1904.) No. 167. 1. JUDGMENT-CONCLUSIVENESS-PARTIES. Where whatever rights complainants acquired in the property of a street railway company were acquired after a foreclosure decree had been entered, but before the decree had been executed by a sale of the mortgaged property, under an agreement between complainants and the street railway company's receiver, and complainants were not parties to the foreclosure proceeding, they were not bound by the decree therein. 2. STREET RAILWAYS-FRANCHISE SURRENDER-CONSENT OF STATE. Where the consent of the state was not obtained to a contract between complainants and the receiver of a street railway company and a city, by which the railway company was permitted to permanently discontinue its railway on a certain street, such contract was void as against public policy, the right to operate the same being a franchise granted by the state on considerations of public welfare. Appeal from the Circuit Court of the United States for the Northern District of New York. See 119 Fed. 634; 124 Fed. 274. Marcus T. Hun, for railway company. A. H. Van Brunt, for trust company. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. WALLACE, Circuit Judge. This is an appeal from a decree for the complainants, and presents the question whether, upon the conceded facts, as appearing by the bill of complaint, the complainant was entitled to relief. The bill is one in the nature of a bill of review to revise a decree of the United States Circuit Court for the Northern District of New York in an action brought by the Central Trust Company against the Schenectady Street Railway Company for the foreclosure of a mortgage made by the railway company. The decree was entered September 1, 1894. Included in the property covered by the mortgage was that part of the railroad of the mortgagor which had been constructed along Washington avenue, in the city of Schenectady, and this part of the railroad was included in the property decreed to be sold, and was sold under the decree January 12, 1895, to Kobbe and others. The sale was confirmed, and a conveyance made to the purchasers February 8, 1895. The complainants are property owners upon Washington avenue, who seek to restrain the Schenectady Railway Company, a corporation, which acquired the mortgaged premises February 17, 1895, from operating its road upon a portion of that street. They assert by their bill that during the pendency of the foreclosure action the receiver in the action, appointed by the court, was in possession of the mortgaged property, and joined with certain property owners upon Washington avenue, including some of the present complainants, in a petition to the common council of 131 F.-37 |
