Sidebilder
PDF
ePub

1889.]

Opinion of the Court-Sawyer, C. J.

At law. Action by R. H. Swayne against John S. Hager, collector of customs, to recover an excess of duties paid by him.

Mr. Milton Andros and Messrs. Page & Eells, for plaintiff.

Mr. J. T. Carey, United States Attorney, for defendant.

SAWYER, Circuit Judge. This is an action brought to recover $3,799.50, with interest, for what is claimed to be an excess of duties over the amount required to be paid by law, collected upon various invoices of Chinese shoes, imported at the port of San Francisco. The shoe consists of the upper part made of silk or cotton, which constitutes the most valuable part of the material, and the sole, the upper part of which is composed of layers of felt and the bottom part of leather. The felt is manufactured in thin sheets from the hair of various animals, as dogs, cattle, and goats, intermixed with wool-fiber and paper. A glue, or starch, made from rice, is added to give greater cohesion. Layers of this article are placed together, and the whole pressed into large sheets, which are then sold to manufacturers for the purpose of making shoes. Several thicknesses of these attached to the silk, or cotton uppers, with a leather bottom piece, constitute the sole of the shoe. The question, is, under what provision of the statute should duties on these Chinese shoes be levied and collected? Under, then, recent instructions from the treasury department they were classified, and duties thereon collected under the fourteenth paragraph of schedule K, of the act of March 3, 1883 (22 Stats. 508), which reads as follows:

"Clothing, ready made, and wearing apparel of every description, not especially enumerated or provided for in this act, and balmoral skirts, and skirting, and goods of similar description, or used for like purposes, composed wholly or in part of wool, worsted, the hair of the alpaca goat, or other animals, made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer, except knit goods, forty cents per pound, and in addition thereto, thirty-five per centum ad valorem."

The importer claims that inasmuch as the goods are nonenumerated articles, "manufactured of two or more materials," the duties should have been assessed "at the highest rates at

Opinion of the Court-Sawyer, C. J.

[February,

which the component material of chief value may be chargeable," under section 2499 of the Revised Statutes, as amended by the act of March 3, 1883 (22 Stats. 491). The clause of said section, under which it is claimed that the goods should be classified, reads as follows:

"And on all [non-enumerated] articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which the component material of chief value may be chargeable. If two or more rates of duty should be applicable to any imported article, it shall be classified for duty under the highest of such rates, provided that non-enumerated articles, similar in material and quality and texture, and the use to which they may be applied to articles on the free list, and in the manufacture of which no dutiable materials are used, shall be free."

Under this statute, the importer further claims that the cotton shoes-the cotton being the most valuable part of the material -should be assessed under paragraph 7 of schedule I of the act of 1883, as "manufactures of cotton not specially enumerated or provided for." The provision is as follows:

"Cotton cords, braids, gimps, galloons, webbing, goring, suspenders, braces, and all manufactures of cotton not specially enumerated or provided for in this act, and corsets, of whatever material composed, thirty-five per centum ad valorem.” (22 Stats. 506.)

And on the silk shoes, in like manner, duties should be levied under the last paragraph of schedule L, as a non-enumerated article made of silk, or of which silk is the "component material of chief value." The paragraph reads as follows:

"All goods, wares, and merchandise, not specially enumerated or provided for in this act, made of silk, or of which silk is the component material of chief value, fifty per cent ad valorem." (22 Stats. 510.)

After a careful examination of these provisions of the statute, and the rules of construction of revenue laws laid down by the United States supreme court in the cases cited on behalf of the plaintiff, I am satisfied that the treasury department is wrong, and the complainant right, in their respective constructions of the statute. I do not think the shoes in question are "com

1889.]

Opinion of the Court-Sawyer, C. J.

posed wholly or in part of hair," within the meaning of the statute. The component parts of the shoes are cotton, or silk, felt, and leather. These are the parts as used by the manufacturers of shoes. It is true that hair is one of the elements used in the manufacture of felt. But I do not think Congress intended, by this classification, to include all the ultimate elements that may have entered into an article. Such a classification would be too nice for practicable purposes. I think, also, the statute refers to textile fabrics. For rules of construction on this point see Elliot v. Swartwort, 10 Peters, 137, 151; Arthur v. Morrison, 96 U. S. 110; Cohn v. Seeberger, 30 Fed. Rep. 425; Greenleaf v. Worthington, 26 Fed. Rep. 303; Riggs v. Frick, Taney, 100. So, also, in my opinion, shoes were not intended to be included in the terms, "wearing apparel of every description," in the provision cited from schedule K. By reading it with the context, "wearing apparel . . . . made up or manufactured wholly, or in part, by the tailor, seamstress, or manufacturer," it seems evident that Congress intended other manufacturers of a class similar to a "tailor, or seamstress"

something ejusdem generis." The principle noscitur a sociis appears to me to be applicable. A shoemaker is not in any respect similar to a tailor, or seamstress. In ordinary popular use of language, no one, I presume, would for a moment think that shoes are included in the terms "wearing apparel." See the following decisions supporting and illustrating the construction adopted: Oates v. National Bank, 100 U. S. 239, 244; Bend v. Hoyt, 13 Peters, 263, 270-272; Adam v. Bancroft, 3 Sum. 384, 386; Reiche v. Smythe, 13 Wall. 162. Chinese shoes have been imported for more than twenty years, and it is understood that during all the time, and for three years after the passage of the act in question, they have been classified as manufacturers of silk and cotton respectively. A definition adopted and acted upon for a long time should not be regarded as changed by a subsequent act of Congress, unless the intention to change is clearly manifest. (Reiche v. Smythe, 13 Wall. 162; De Forest v. Lawrence, 13 How. 274. See, also, Edwards v. Darby, 12 Wheat. 210; Hahn v. United States, 107 U. S. 402, 406; United States v. Pugh, 99 U. S. 269; Robertson v. Downing, 127 U. S. 608,

Opinion of the Court-Deady, J.

[March,

613, and cases therein cited.) I think the classification should be made, and duties levied under the several provisions cited as claimed by the importer. Let there be findings and judgment accordingly.

EDWARD TRACY v. MARY A. REED.

CIRCUIT COURT, DISTRICT OF OREGON.

MARCH 4, 1889.

1. ASSESSMENT OF REAL PROPERTY-TO WHOM MADE.-By the act of 1882 (Comp. 1887, sec. 2735), real property must be assessed to the owner thereof, unless it is unoccupied and the owner unknown; and an assessment made to a person not the owner of the property is invalid.

2. "OWNER" OF PROPERTY-WHO IS.-' -The owner of property for the purpose of taxation is the person having the legal title or estate thereto or therein, and not one who by contract or otherwise has a mere equity therein, or a right to compel a conveyance of such legal title or estate to himself.

8. TAX DEED-EFFECT OF. — An act of the legislature (Comp. 1874, p. 767, sec. 90) made a tax deed conclusive evidence of the regularity of the assessment, except for fraud; and on the trial of an action brought by the grantee in such a deed, to recover possession of the premises mentioned therein, the parties stipulated the existence of certain facts, from which it appeared in the judgment of the court that the assessment in question was made to a person not then the owner of the property. Held, that the effect of such stipulation was a waiver by the plaintiff of the conclusive character of the deed in this respect, and an admission that if in the judgment of the court the person to whom the property was assessed was not the true owner thereof, then the assessment was invalid and the tax deed void.

4. IDEM-ACT CHANGING EFFECT OF.-A tax deed made in pursuance of a sale of property for a delinquent tax, under an act which provided that such deed shall be conclusive evidence of the regularity of the assessment, except for frand, is a contract with the state that the deed shall so far remain conclusive evidence of title in the grantee therein, and a subsequent act of the legislature, making such deed only prima facie evidence of such regularity, is void, because it impairs the obligation of the contract. The ruling in Marx v. Hanthorn, 12 Sawy. 377, on this point affirmed.

Before DEADY, District Judge.

Mr. W. Scott Beebe and Mr. John M. Gearin, for the plaintiff. Mr. Alfred Sears and Mr. Paul R. Deady, for the defendant.

DEADY, J. This action is brought by the plaintiff, a citizen of California, against the defendant, a citizen of Oregon, to recover the possession of lot 3, in block 206, of the Couch addition to Portland.

1889.]

Opinion of the Court-Deady, J.

The pleadings consist of the complaint, answer, and reply, from which it appears that the plaintiff claims title to the lot under a sale thereof for a delinquent tax thereon, on June 18, 1884, to which claim two defenses are pleaded: (1) The assessment on which said tax was levied is void, because not made to the owner of the property; and (2) the tax was paid before the sale took place. The defendant also brings into court, and deposits with the clerk, under section 2323 (Comp. 1887), the sum of $15.65, the same being the amount of the tax of 1883, and the accruing cost and interest thereon.

The case was submitted to the court for trial without the intervention of a jury, and upon a stipulation concerning certain facts, with the right to either party to introduce further evidence on the trial.

From this stipulation it appears that the property in question exceeds in value the sum of $2,000, and that on July 10, 1880, R. Glisan being the owner thereof, bargained and sold the same to the defendant by an agreement of that date, signed by himself and wife, and by the defendant.

By the terms of this agreement, erroneously called "a bond for a deed," the defendant was to pay $300 for the propertythe one half down, and remainder in quarterly payments of $18.75 each, with interest; whereupon the vendors were to convey the premises to her in fee-simple. It was also agreed that the defendant might take possession of the premises at once, and that she would pay all taxes that might be levied on the property; and that if the purchase money due under the agree ment was not all paid by July 10, 1882, the agreement should become null and void at the option of Glisan, and all money then paid thereon become forfeited to the vendors.

On September 14, 1881, the defendant paid the remainder of the purchase money, and on June 7, 1887, the vendors duly conveyed the premises to her.

Prior to July, 10, 1880, the property was assessed to R. Glisan as the owner thereof, but after the making of said agreement and for and during the years 1880 to 1887, both inclusive, the same. was assessed to the defendant without complaint or objection from any one. It is admitted that during the same period,

« ForrigeFortsett »