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ruptkept no, b09ks at, all, or that he failed to keep any, o,f the books necessary for the trlinsactlon of the in question. Having failed In this, however, hecanbot enter into an examination of the books themselves, for the purpose of showiI,lg that they were carelessly kept,or kept on a wrong principle. If such an issue Is to be raised, the bankrupt must be advised of it by distinct, specific, and definite statements of pleading. In Condict's Case, 19 N. B. R. 142, Fed. Cas. No. 3,094, the court says: "It has been the uniform practice under the bankrupt act to consider all specifications too vague and general which charge the offenE.e in the words of the act. '.rhe particulars in which the bankrupt has offended should be so set fOl1:h that he may be apprised of the precise matters wherein he Is alleged to have transgressed." In }<'rey's Case, 9 Fed. 376, the court says: "The objection being, therefore, to the manner In which the books are kept, and to imperfections or omissions therein, general objections, like those above stated, are not sufficient. The particular irregularities or omissions :must be pointed out in the specifications, to entitle them to be considered." [And numerous cases art! cited.]
The holding of Judge Coxe appears to be very favorable to the objecting creditor, in that it would permit an issue to be raised wherein the omission alleged is not specified. No more favorable holding has been pointed out to me. But even under that holding the specifications in the pending case must be held insufficient, as being tl)O vague, uncertain, indefinite, and as not specifying. At the close of the extract from Collier appears the suggestion that the judge may compel the objecting party to be more definite. Doubtc less, this refers to the case where the objecting creditor has attempted to specify, but has failed to push his specification sufficiently far into detail. Manifestly, the court would, in such a case, where the goo'! faith in the attempt of the creditor is manifest, permit amendment. But such amendment ought to be permitted only where there is manic fest an attempt of the creditor to specify. In such a case the court may properly grant opportunity for the presentation of the specific facts which the objecting creditor claims to exist. The conclusion is that the grounds, as alleged, do not justify an investigation thereof by the judge, and are not sufficient to arrest the granting of the discharge for which application is made. The objec· tions are overruled, and the discharge is granted. In re WISE (fifteen cases). (Circuit Court, N. D. California. December 10, 1898.) Nos. 11,984-11,998. 1. CUSTOMS DUTIES-CLASSIFICATION-"ENUMEHATED" ARTICLES.
To place an article among those designated as "enumerated," so that It does not come within the operation of the similitude clause of a 'customs law, it is not necessary that it should be specifically mentioned.
2.
SAME-CHII\ESE SHOES.
Paragraph 456 of the tariff act of 1890, covering "boots and shoes made of leather," is applicable, in the absence of any restrictive words, to all shoes made of leather, notwithstanding the fact that other materials are used in greater quantity; and Chinese shoes manufactured from various materials, including leather, cotton, silk, thread, and felt, but of which leather is the component material of chief value, are dutiable under such paragraph, and not under paragraph 461, as articles, of which leather Is the component part of chief value, not specially provided for.
444
93 FEDERAL REPORTER.
This an application by States for the review of ade-. dsion of the board of general appraisers as to the classification of certain merchandise imported byChee Chong & Co. &unuel Knight, Asst. U. S.Atty., for Collector Wise. Page, McCutchen & Eells, for importers. HAWLEY,District Judge. The merchandise in question consists of what is generally known as "Chinese shoes," The collector classified the merchandise as cotton wearing apparel, of which cotton was the component material of chief value; and duty thereon was exacted at 50 per cent. ad valorem, under paragraph 349 of the McKinley tariff act of October 1, 1890. The importers duly protested against the action of the collector to the board of general appraisers at New York, and in their protest stateg: ·"The grounds of our objections are that said shoes are composed of several materials, of which leather is the component material of chief value. 'Ve claim that they are entitled to entry at 25 per cent. ad valorem, as shoes of under paragraph 456, Act Oct. 1, 1890, or at 35 per cent. ad valorem, under .paragraph 461 of the· sarne act."
Included in the protest were several cases of merchandise, which the board of appraisers found consisted of "cotton," and others of "silk," as the "component material of chief value"; and as to these the appraisers -affirmed the decision of the collector. No question is involved in relation to. the duty.on such merchandise. The respectiveparties have stipulated "that, in all cases where the board of appraisers have sustained the action of the collector herein, such decisions sball stand unaffected hereby." The appraiser'S decided "that the ,shoes, of which leather is a component material of chief value, are dutiable at 25 per cent., under paragraph 456." Is this decision correct?Are the shoes dutiable under paragraph 456, as contended they dutiable, as contended for by the for by 'the importers, or government, under paragraph 461, or, if not specially provided for in this act, are they dutiable under this section by virtue of the "similitude clause" of section 5 of the tariff· act? These provisions of the act, in so far as they are material to the question herein involved, read as follows: "(456)· · · Boots and shoesmo:de of leather, 25 per centum ad valorem." "(461) Manufactures of leather, fur · · · or of which these substances or either of them is the component material of chief value, all of the above not specially provided for In this act, thirty-five per centum ad valorem." "Sec. 5. >II,. · And on articles not enumerated, manufactured of two or more materials, the duty, shall be assessed at the highest rate at which the same would be if composed wholly of the component material thereof of chief value; and the words 'component material of chief value' wherever used in this act, shall be held to mean that component material which shali exceed In value any other single component material of the article; and t.he value of each component. material shall be determined by the ascertained value of such material in its condition as found in the article. If two Of wore rates of duty shall be applicable to any imported article it shall pay duty at tbe highest of such rates."
No evidence ,has been presented that the shoes in question are commercially known as "shoes made of leather." There is no evi-
BE WISE.
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dence as to their particular character or designation, except· an eXhibition of the shoes themselves. The respective parties have, however, .stipulated, for the purpose of this case, "that it shall be considered as proven herein that the merchandise involved in these suits are Ohinese shoes, manufactured from various materials, such as leather, cotton, silk, thread, and felt, of which shoes, leather is the component material of chief value." The similitude clause applies only to nonenumerated articles. Arthur v. Sussfield, 96 D. S. 128. I am of opinion that the similitude clause has no application, and that the article is an enumerated article, within the meaning either of paragraph 456 or paragraph 461 of the tariff act. The law is well settled that to place an article among those designated as "enumerated," so as to take it out of the operation of the similitude clause of the customs revenue laws, it is not necessary that it should be specifically mentioned. Arthur's Ex'rs v. Butterfield, 125 U. S. 71, 76, 8 Sup.. Ct. 714; Mason v. Robertson, 139 U. S. 624, 626, 11 Sup. Ct. 668; Lieberiroth v. Robertson, 144 U. S. 35, 40, 12 Sup. Ct. 607, and authorities there cited. It is argued on behalf of the collector that, if congress meant to include Chinese shoes in paragraph 456, it would have used language more appropriate therefor,-as, for instance, by inserting the phrase "or of which leather is a component part," or "of which leather is the component material of chief value," or "made wholly or in part of leather." There are doubtless many cases where such reasons could be, lind have been, used; but I fail to see any great force in the argument as applied to the present case, because the same argument could be as effectively urged as a reason why paragraph 461 does not apply, in that it does not state that its pr()visions should apply to "shoes not made principally of leather," as well as to other articles, not hereinbefore specifically enumerated, of which leather "is the component material of chief value." It may be that there is no good reason why congress should not, as it readily could, have used language that would more clearly have expressed the intention. But when such words are left out of a statute, either by oversight, design, or mistake, the courts, as a general rule, have no power to, supply the omission, but are bound to take the statute as congress made it, and interpret it in the light afforded by the language used. As was said by Mr; Justice Story in Smith v. Rines, 2 Sumn. 338, Fed. Cas. No. 13,100, "It is not for courts of justice, proprio marte, to provide for all the defects or mischiefs of imperfect legislation." An examination of the tariff act shows that in certain paragraphs there are certain articles named, descriptive in their general character, and then paragraphs containing other descriptions which might, if they stood alone, be sufficient to cover the same articles that are in other paragraphs either generally or specifically described. There are many decisions which refer to this condition of the tariff act. Arthur v. Morrison, 96 U. S. 108; Same v. Dnkart, Id. 118; Same v. Stephani, Id. 125; Same v. Sussfield, Id. 128; Solomon v. Arthur, 102 U. S. 208, 212. There is no inflexible rule in the interpretation of statutes. Courts, in attempting to construe statutes, are often "born unto trouble as the sparks fly upwards." It has been said of the statute of
tiple:of its iIt itt! and has aqopteq if pot all, the states of the that it tookmore . of. than tJ;J.ere areletters,ip the In f"ct, ,tbere iJ>s.tUHlome dpubtextisting inthe:.minds ot, many jurists and as to whetherjtl,'eally has been,or; wip be, made perfectly clear. Lawson, in his Leading Cases Simplified (page 56), says: "As was to be expected. the courts were soon called upon ,to Interpret the provisions of this In fact they have kept at itfcll:200 years, lUll,l,are, by no through yet.. Indeed. one may say that ,they have just got a 'good start." ..",
trauds.
Our'revenue,;'tariff laws, and are not, b.pwever, allowed to remain long enough upon the statutes to enable courts to "get a good start" at their interpretation. They are, by the necessicountry, and change of admipistraties of the time$; .condition tions,being Whole are removed, new clasrd,&cations made,.and,newphrases and inserted in many of the paragraphs. This, ,diversion has ind1JJged in' simply to faintly illustrate the innumerable doubts of opinion constantly arising. between the collectors and impo.rter:s in rell:l;tion to customs duties impOli\ed by the tariff. act. Thiljl state of things is unavoidable. , " " . , ]be'fact is act of cQngress must .be construed with special refe,rence to its acco'rding to true intent and meaning oUts teIJ:p1s;and,.when the is agcertaipep,tltat, andpJlly that, is to. be our guide in, interpreting it. In the natureQf the subject of imposing ,duties, on imported articles,-it wouldbeexceedingl;vdifficult, if not impos$ible, t(l make a specific desGriptivedesignation of each article that might be thereafter imported. :Chinese shoes. of .the same or similar. character alii are in .issue in this case have: been imported in1:o this country f(lr more 30 yeal,'$., Congress, however, ha$ never deemed them of sufficieJ].t impot'ta:p.ce to give them a specific ,d:e!!ligtiation under the head or name of, shoes.", My atte¥tion has been called to b\lt oneca!'e (that of Swaynev. Hager, 37 Fed. 780) where the subjectis, discussed. But that <;ase.$Jleds but little,.if any, light upon the matter prese,llted fn this Case. There the collector classified the shoes as: "wea,'ripg :apparel,":u];ljier the fourteentb . paragraph. of Schedule I{ of the act of Mllrch3,1883 (22 509); and theimporte,t'S .claimed they came under the seventh of the same scheduJe""all mallufadures of ,cotton not Speciil-Uy, or provi<J:e4 .for in this act."'1'4e court found that cotton constitllted the most valuable ,part of the material, .and sustained the claim of the importers. ,1he paragraphs. iJ]. the McKinley. :act are different. U;nderpluagraph 4;56 we .have "bQots anI;! shoes made. ,of leatb,er"; and the stipulation is that, tbe sb.oes in controversy are manufactured froIll variousmate:t:ials,such as leather, cot;t()ll, silk, threa9, and felt, of,whicb leather, is '8 material of chief valu,e. From an illspection of the sboes, it might beflaid that they are not, strictly speaking, leather shoes; but they are shoes made in part, 'it least, of leather, and leather is a component material of chief
IN RE WISE.
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value. When congress used the term "shoes made of leather," it could not have intended, as suggested by counsel, that it meant only "shoes which are entirely made of leather." Such a restricted meaning cannot, of course, be accepted by the courts. The term "shoes made of leather" is descriptive, rather than denominative. It refers not to any particular class ()f shoes, but to all kinds of shoes made of leather. There are many different kinds of shoes made of leather which are composed of as great a variety of materials as the Chinese shoes. Cotton, felt, thread, and iron or steel nails are found in all. In some, elastic, wood, paper, buttons, and bone are also found. And in some of these shoes it may, perhaps, with some degree of accuracy, be said that the articles therein found are no more disproportionate, in value, at least, to the leather, than the articles found in the Chinese shoes. If, therefore, leather is the predominant article .ofgreatest value, ora component part of chief value, I see no substantial reason why that test should Dot be applied, rather than the one claimed on behalf of the collector,-that it should be the article forming the greatest bulk, or covering the most space: The general description of "shoes made of leather," in section 456, fOr the reason stated, seems to me applicable, in the absence of any. restrictive words, to all shoes of leather, notwithstanding the fact that ather materials are. used, of a greater quantity or bulk. I am of opinion that the general description should be gi'Ven con· trolling effect. .. . . Of the cases cited by corinsel, the one bearing the closest analogy to the case in hand is Robertson v. Glendenning, 132 U. S 158, 10 Sup.. Ct'.' 44. There the articles were embroidered linen handkerchiefs. The question was whether the duty to be paid came under the eighth paragraph of Schedule J of the act of 1883, which covers "handkerchiefs," and also "other manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component part of chief value,35 per cent. ad valorem," or under the eleventh paragraph of the same schedule, which. specified "flax ()r .linen laces and insertings, embroidery, or manufactures of linen, if embroidered or tamboured and not specially enumerated or provided for in this act, 30 per cent. ad valorem." From the samples introduced in evidence, it appeared that the body of the cloth was linen cambric made of flax, and known in trade as "embroidered handkerchiefs"; that the embroidery was a substantial part of the handkerchief, and was done with cotton. The contention of the government was that the provisions of the statute should be construed as if they read, "On linen handkerchiefs 35 per cent. ad valorem, but if embroidered 30 per cent. ad valorem." The court declined to accept this construction, and held that where an article is designated by a specific name, and a duty imposed upon it by such name, general terms in a later part of the same act, although sufficiently broad to comprehend such article, are not applicable to it. See, also, Arthur v. Lahey, 96 U. S. 112, and authorities there cited; U. S. v. Wolff, 69 Fed. 327. The decision of the board of appraisers is affirmed.
93 FEJ;>ERAL REPORTER. UNITED STATES v. SCHROEDER et al.. (Circuit COurt of Appeals, Second CIrCUit. March 1, 1899.)
No. 58. CuSTOMS DUTIES....:.ToBACCO.
TarUf Act Oct. 1, 1890 (26 Stat. 5(7), having no provision tor "tobacco, unmanufactured, not specially enumerated or provided tor," the portions' of leaf tobacep which break,olf In hll1ldllng the tobacco before It Is stemprocess of shipping, andilre swept up, and are and can be med, or In used only forcigareftes and the fillers Of the cheaper grades of cigars, and are not covered by" any of the paragraphs of the tobacco schedule, may fairly be clas"ltied under paragraph 472 as waste. '
:Appeal from the Circuit Court of, the United States for the South· ern District of New York. This cause,<:omes here upon appeal from a decision of the circuit ,of New York, reversing a decision of the court, Southern board of generaiappraisers which sustained a decision of the col· lector of thE! pOJ:tof NeW' Yor}r classifying a importation of tobacco for cust9ms duty. 87 Fed. 201. The importation consists of those portions of the leaf tobacco break off in handling the tobacco before it is stemmed, or in the process of stripping. "Henry 0, Platt, for appellant. Wm. B. Hill, for appellees. Before WALLACE, LAOOMBE, and SHIPMAN, JUdges. 'LACOMBE, Circuit Judge. Tb,e local who examined the importation reported it "as assimilating to, and as a platter of fact being, a filler tobacco"; and the collector assessed duty thereon undel' paragraph 243 of the. ,act of October 1, 1890. 26 Stat. 567. The first paragraph'ill. the tobacco schedule (242) provides for "leaf tobacco, silitable fp:r cigar wrappers." No one contends that the im-' is pro"isions of tllat paragraph; . Paragraph 2,43 reads as "" ':(243). All other tobacco in. al1dnot stemmed; thIrty-five cents per pound; If fifty cents per pound." 'Pa,tagraph 244, reads:' "(244) Tubaccq, of all de$criptions, ,not or provided 'for in this act, , forty cents per pound:" TJie remammg paragraphs of the schedule, are 245, c,oven,ng snuff of. an descriptions, and 246, covering cigars, ' cigarettes, and:, cheroots. ',(J()mparing schedule with the tobacco schedule in preceding tariff act (Acts 1883, c. 121, 22 Stat. 502) it appe tbat congress has omitted a proviBi()n for "tobacco, unmanufactured; not specially enumerated or provided for," which would seem tQ,c()ver the mercbandiseinquestion. This provision of tlieearIieractoeing omitted, the question to be is, ' oneol the provisions ufthe 'aCt of 1890 is this Scrap filler tobaccoto be ClaSsified? ,', ' . "" " .' . . . .' Itma.ywell that; 'as Jound by local appraiser, it bears 'a ' sufficient similitude to Jhe leaf of paragraph. 243 to ('ant its classification thereunder; bUt the section of the tariff act'
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