Silk laces.... Aug. 5, 1861. 12 Stat. at L., 293. July 14, 1862. 115] *Thread laces. Cotton laces.... Stat. at L., 299, and continued in the Duty Acts 40 per cent. of 1816, 3 Stat. at L., 310; 1832, 4 Stat. at L., 583: 1842, 5 Stat. at L., 548; 1846, 9 Stat. at L., 46-7. Full effect can be given to the term 'fruit' 'dried,' without the very forced construction to bring within it the article in question." The effect of both the Acts was thus continued in force. 30 per cent. 25 66 12 Stat. at L., 550, 556, secs. 6, 13. Silk lace.. Cotton lace... June 30, 1864. 60 per cent. Cotton lace, colored. Cotton lace.. Thread lace. Silk laces... The same principle of reference to the former statute was sustained in Reiche v. Smythe [supra]. The case was this: the 23d section of the Act of March 2, 1861, 12 Stat. at L., 192, pro35 per cent. vided that "Animals living, of all kinds; birds, singing and other; land and water fowls," shall be exempt from duty. 35 66 66 30 R. S., pp. 464, 466, 472, 1091, sec. 5595. 18 Stat. at L., 307. Congress here plainly recognizes the distinction made by the importers and traders, and recognizes and establishes one rate of duty for silk laces and another rate for thread laces. The distinctions have run through the Acts of Congress for more than thirty years; and we do not see how the judge at the trial could have adopted any other rule than the one complained of, to leave it to the jury whether the article was thread lace, a known commercial article, liable to duty as such, eo nomine. The same reasoning will settle the question as to the application of the 50 per cent. duty under the residuary clause of the Act of 1864. The case of Smythe v. Fiske, supra, is relied upon by the appellant. That case was not intended to overrule Homer v. Collector or Reiche v. Smythe, supra, or the cases referred to in those authorities, nor was Movius v. Arthur understood to be in conflict with it. Smythe v. Fiske simply decided that silk ties, not being specifically enumerated in any of the Acts, either of 1864 or of preceding years, the rate fixed by the Act of 1864 was the correct rate for their assessment. To this we now hold. 116] *It is not necessary to the correctness of that decision to hold that the Act of 1864 for bids a reference to any previous Acts to determine the duty upon articles mentioned in such Acts eo nomine, and not specifically named in the Act of 1864. The Act of May, 1866, 14 Stat. at L., 48, provided that a duty of 20 per cent. ad valorem should be imposed "On all horses, mules, cattle, sheep, hogs and other live animals." After the passage of this Act, and by virtue of it, the collector exacted the duty of 20 per cent. upon a lot of canary birds, which was paid under protest, and the question was as to its legality. In delivering the opinion of the court, Mr. Justice Davis said: The Act of 1866 is comprehensive enough to include birds; and if [117 there had been no previous legislation, there would be justification for the position that Congress did not intend to narrow the meaning of the words. The Act of 1861, he says, intended birds to be admitted free of duty, and the Acts of 1866 must be limited to animals ejusdem generis with cattle, sheep and horses. The two Acts, he says, are in pari materia, both remaining in force that of 1861 admitting birds free of duty, and that of 1866 imposing the duty on horses and like animals, notwithstanding the general terms of the latter. The birds were, therefore, held to be exempt from duty. In Movius v. Arthur [supra], the same principle of construing both Acts in pari materia, to remain of force, prevailed. The Act of 1861, 12 Stat. at L., 192, imposed a duty of 30 per cent. on "japanned leather" eo nomine. By the Act of 1862, 12 Stat. at L., 556, an additional duty of five per cent. was imposed upon the same article by name. The Act of 1872, 17 Stat. at L., 230, enacted that, in lieu of existing duties, there should be imposed on "skins dressed and finished" 90 per cent. only of the duties by law imposed, "it being the intent of this section to reduce the duties ten per centum on all leather not herein otherwise provided for." Although this Act contained the words, "not herein otherwise provided for," that is, not provided for in this Act or this section, it was held that the two statutes must be construed as both to be in force, and that "japanned leather," being eo nomine described in the former Act, was not taken out of it by the general words of the later Act, and that the larger duties of the Acts of 1861 and 1862 were legally chargeable. That such reference is proper was held in Homer v. Collector [supra]. The Tariff Act of 1840. 9 Stat. at L., 46-7, had imposed a duty of 40 per cent. upon the articles enumerated in the schedule referred to, among which were "almonds," by name. By the 1st section of the Tariff Act of 1857, 11 Stat. at L., 192, these duties were reduced to 30 per cent. The 2d section made "fruits, green, ripe or dried," liable to a duty of 8 per cent. only. In holding that almonds were liable to the duty of 30 per cent., and were not embraced in the general terms of the 2d section, Mr. Justice Nelson says: "The It will be observed, that, in two other secargument is, that almonds are dried fruit, and tions (besides the 8th), of the Act of 1864, 13 hence are provided for in the 2d section of the Stat. at L., 209, 210, manufactures of silk are Act of 1857; and evidence was offered to show referred to, indicating that the entire subject that such was the commercial sense of the term. was not intended to be disposed of in that secBut this inquiry had nothing to do with it, tion. Thus, in section 5, p. 208, a duty of 10 for certainly such proof could not exist per cent. is imposed on "lastings of mohair, silk, or be found, in the sense of commercial usage, twist," etc. Again, in the same section, p. 207, a under any of the Tariff Acts, as duty had been duty of 50 per cent. ad valorem is imposed "on imposed on almonds eo nomine almost immemor- flannels composed in part of silk." See, Stuart ially, at least since the Duty Act of 1804, 2│v. Maxwell, 16 How., 150, 160, and Pennington v. Coxe, 2 Cranch, 33, to the point that the Revenue Acts are one system, and are to be read together. By the 22d section of the Act of 1864, it is enacted, "That all Acts and parts of Acts re118] pugnant to the provisions of this Act be, and the same are hereby, repealed; * * and provided further, that the duties upon all goods, wares, and merchandise imported from foreign countries, not provided for in this Act, shall be and remain as they were according to existing laws prior to the 29th of April, 1864." 13 Stat. at L., 216. This may well be construed to retain duties on articles specifically enumerated in former Acts, different from those imposed by the Act of 1864, but not specifically named therein, and although the same class of subjects may be referred to in the Act of 1864. The judgment must be affirmed, upon the grounds following: 1. The commercial designation of an article among traders and importers, when clearly established, fixes its character for the purpose of the tariff laws. 2. When Congress has designated an article by its specific name, and imposed a duty upon it by such name, general terms in a subsequent Act, or in a later part of the same Act, although sufficiently broad to comprehend such article, are not applicable to it. 3. That the expression, "not otherwise provided for," in the 8th section of the Act of 1864, does not deprive these rules of their ordinary application. And it is ordered accordingly. I, James H. McKenney, Clerk of the Supreme Court of the Unted States, do hereby certify that the foregoing is a true copy of the opinion of the court in the case of Chester A. Arthur, Collector of the Port of N. Y., Plff. in Err., v. Isaiah A. Lahey et al., No. 518, October Term, 1877, as the same remains upon the files and records of said Supreme Court. In testimony whereof I hereunto subscribe my name and affix the seal of said [L. S.] Supreme Court, at the City of Washington, this 20th day of March, A. D. 1885. James H. McKenney, Clerk, Supreme Court, U. S. In Error to the Circuit Court of the United States for the Southern District of New York. The case is stated by the court. Mr. Edwin B. Smith, Asst. Atty-Gen., for plaintiff in error: The Government contends, upon the authority of Smythe v. Fiske, 23 Wall., 381, 23 L. ed., 47, that the Tariff Act of July 30, 1864, ch. 171, intended an entirely new classification of dutiable articles so far as fabrics made of silk or cotton are concerned, at least, according to material. The 8th section included all articles made of silk, or of which it was the component of chief value; while the concluding clause of the 6th section (13 Stats., 209, middle) provided that all "manufactures of cotton not otherwise provided for," should pay "35 per centum ad valorem." It will be noticed that it does not say "or of which cotton is the component of chief value." If gloves, partly of slik, but the greater value of which is cotton, are non-enumerated, then they come under. the similitude clause of the Act of 1842, ch. 270, sec. 20 (5 Stats., 565, middle, now found in R. S., sec. 2499), which requires "the same rate of duty which is levied on the enumerated article which it most resembles” "in material, quality, texture, or the use to which it may be applied;" "And if any nonenumerated article equally resembles two or more enumerated articles, on which different rates of duty are chargeable, there shall be levied, collected and paid on such non enumerated article the same rate of duty as is chargeable on the article which it resembles paying the highest duty; and on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable." There is no enumeration of cotton gloves, nor of gloves generally, in this Act of June 30, 1864; therefore silk gloves are the specific enumerated articles which these importations most nearly resembled, and were, therefore, dutiable at 60 per cent., under either clause of this similitude section. The reference to the Acts of 1861 and 1862, upon which alone the plaintiffs recovered, was unauthorized. The burden of proving their case rests wholly and throughout upon the plaintiffs. The defendant is alleged to have been acting officially. The presumption is that a thing CHESTER A. ARTHUR, Collector of the Port done officially is done rightly; and he who as [No. 609.] serts the contrary, and that it was done "unlawfully" should certainly be held to prove it. Bingham v. Potter, 14 Gray, 522; Fiske v. N. E. Ins. Co., 15 Pick., 317; Greenl. Ev., sec. 80. When he has simply shown a payment of money, he has shown no right to its recovery; for the presumption is that it was lawfully paid and received. Clapp v. Thomas, 5 Allen, 161, bottom. Nor does it alter the case, if he shows it was paid to obtain possession of goods, if it also be admitted that the payee was entitled to retain them until some payment was made; for it was not duress, unless the amount demanded was excessive; and this is the very thing the plaintiffs must show by a preponderance of evidence, to entitle themselves to a recovery. Greenl. Ev., sec. 74; Thornton v. Adams, 11 Gray, 393. Messrs. Wm. Stanley and Stephen G. Argued Mar. 27, 1878. Decided Apr. 15, 1878. Clarke, for defendants in error: The rulings of the court below, in respect to the burden of proof, are no ground of error. Wilkinson v. Greely, 1 Curt., C. C., 441; Lottimer v. Symthe, 17 Int. R. R., 13. Mr. Justice Hunt delivered the opinion of the court: In May, 1873, the defendants, Unkart & Co., imported into the Port of New York certain merchandise, upon which the plaintiff in error, assessed a duty of 60 per cent. under the 8th section of the Act of June 30, 1864, which imposed a duty of 60 per cent. on various articles of clothing made of silk; naming hats, gloves, etc. The concluding clause of the section is as follows: "On all manufactures of silk, or of which silk is the component of chief value, not otherwise provided for, 50 per cent. ad valorem." Against the imposition of this rate of duty the importers protested in due form. Upon the trial it was conceded that the articles in question were gloves; that they were commercially known as "silk-plaited gloves," or "patent gloves;" that they were manufactured in part of silk and in part of cotton, and were made on frames, The jury found that cotton was the chief component of value in the gloves, and that the value of the silk therein was less than that of the cotton, and gave their verdict for the importers. From the judgment entered upon such verdict this writ of error is brought. The Act of March 2, 1861, 12 Stat. at L., 191, provided a duty of thirty per cent. sec. 22, on many articles, and, among them, "caps, gloves, leggins, mitts, socks, stockings, wove shirts and drawers, and all similar articles made on frames, of whatever material composed, worn by men, women or children, and not otherwise provided for." The 13th section of the Act of July 14th, 1862, 12 Stat. at L., 556, increases this duty by the same descriptive terms, five per cent. ad valorem. By the Act of June 6, 1872, 17 Stat. at L., 230, the duties upon manufactures of cotton having cotton as the component of chief value, were reduced ten per cent. The articles in question did not come within the general terms of the 8th section of the Act of 1864, 13 Stat. at L., 216, for these reasons: 1. They were not silk gloves, by reason of their component materials being composed of silk and cotton, the latter material preponderating; 2. They were commercially known as "plaited gloves," or "patent gloves," and not as silk gloves. They did not fall within the concluding clause, because silk was not the component of chief value. The facts here stated are founded upon the concessions of the parties at the trial and upon the verdict of the jury. Not being included in the Act of 1864, the articles are dutiable under the Acts of 1861 and 1862, where they are enumerated as gloves made on frames, and by the Act of 1862, which adds five per cent. to the duty of 1861. The suggestion is made that the articles may be taxed under the similitude clause of the Act of Aug. 30, 1842. 5 Stat. at L., 565; R. S. sec. 2499. This provision, by its terms, applies to non-enumerated articles only, Stuart v. Maxwell, 16 How.. 150; and no such claim was made on the trial that it applied to this case. Among the ten carefully prepared points presenting the views of the Government, there is no reference made to the Similitude Act of 1842. Neither the Collector in imposing the tax, nor the counsel at the trial, professed to act under or *to demand any advantage from the Act [121 of 1842. The right of the Government was placed exclusively upon the Act of 1864. Upon the point of the rate of duties to which the goods were liable, we are of the opinion that the importers were right, and were entitled to a return of the excess paid by them. There is, however, a further question in the case. The counsel for the defendant requested the court to charge that, in this action to recover for an alleged illegal exaction of duties, it devolved upon the plaintiff to make out his case, by showing the illegality complained of; that the burden of proof was on the plaintiff to satisfy the jury, by a fair preponderance of evidence, as to the character of the materials of the gloves. The court refused this request, but charged the jury "That the burden of proof is upon the defendant to justify his exaction of the duty imposed, so that it is for you to be satisfied that the evidence fairly preponderates in favor of the defendant, that the materials which are the component of chief value are silk; otherwise the plaintiffs are entitled to a verdict." It is not doubted that it was the duty of the Collector, in the first instance, to decide whether the articles imported were dutiable, and at what rate. The statute makes it his duty. Neither can it be doubted that unless protest is made within ten days, and unless an appeal is taken to the Secretary of the Treasury within thirty days after such decision, the decision of the Collector on these points is final and conclusive. The statute expressly declares that it shall be so. The decision of the Secretary upon such appeal is also declared by the statute to be final and conclusive, unless a suit be brought to recover any alleged excess of duties within ninety days after such decision, or within ninety days after the payment of duties, if payment be made after such decision. No suit can be maintained until the decision of the Secretary has been had as to any transaction at a point east of the Rocky Mountains unless his decision has been delayed for more than ninety days. 13 Stat. at L., 214, sec. 14; R. S., sec. 2931. Express authority to maintain the action is given by the Statute of 1845 and the Revised Statutes. 5 Stat. at L., 727; R. S., sec. 3011. When an appeal is taken from his decision, the decision of the Collector ceases to be conclusive; and the same is true of the *de- [122 cision of the Secretary of the Treasury. These officers are, however, selected by law for the express purpose of deciding these questions; they are appointed and required to pronounce a judgment in each case; and the conduct, management and operation of the revenue system seem to require that their decisions should carry with them the presumption of correctness. This rule is not only wise and prudent, but is in accordance with the general principle of law, than an officer, acting in the discharge of his duty, upon the subject over which jurisdiction is given to him, is presumed to have acted rightly. The case may be likened to that of a sheriff who levies upon the property of a debtor, who claims that a portion of it is exempt from seizure upon execution. It is not sufficient that the debtor shall claim the exemption, but he must, by proof of registry when necessary, or that the articles seized are those named in the statute, or are required to make up the amount of the exemption, or in some other mode, prove that articles were exempt, and that thus the seizure was illegal. Both the sheriff and collector have power to act in the first instance upon the question in dispute, and he who insists that such action is in violation of law must make the proof to show it, Griffin v. Sutherland, 14 Barb.. 456; Tuttle v. Buck, 41 Barb.. 417; Van Sickler v. Jacobs, 14 Jolins., 434. The importers here bring their suit. alleging in their complaint not merely that there was an exaction of duties, but that such exaction was excessive and illegal. The burden of proof is upon the party holding the affirmative of the issue. Johnson v. Plowman, 49 Barb.. 472. Mr. Roscoe says: "When the issue involves the charge of culpable omission, it is incumbent on the party making the charge to prove it, although he must prove a negative, for the other party shall be presumed to be innocent until proved to be guilty." Roscoe, Ev. 52. cited Fiske v. Ins. Co., 15 Pick., 317, where the issue was upon the materiality of a fact not communicated to the underwriter. In Bk. v. Davis, 2 Hill. 451, where the question was whether a discount had been made in bills procured from the old Bank of the United States, the court say, that the party alleging the illegality of a contract has the burden of proof, there being nothing illegal upon its face. 123] To the same purport sec, Cuyler v. Sanford, 8 Barb., 225. So, on an application to vacate an assessment for a local improvement on the ground of fraud, the burden of proof is on the applicant. In Matter of Bassford, 50 N. Y., 509. In an action against public officers for a nonfeasance, the burden of proof is on the plaintiff. Minklaer v. Rockfeller, 6 Cow., 276. ering. It is true that the Circuit Judge, on the trial of that case, charged that the burden of proof was on the collector to show that the articles were not truly described in the invoice, and were, therefore, subject to the higher duty, and that, on the motion for a rehearing before Mr. Justice Curtis, he assumed that to be the law. It does not, however, appear that the point was made and argued by counsel, or that it received from the learned Judge that consideration which would entitle it to be held as an authority. The ruling has never been followed in the circuit where made, so far as we [124 can learn, and during the last fifteen years we have the authority of Mr. Justice Clifford for saying that the law has always been held in that circuit to be otherwise. For this error the judgment must be reversed and a venire de novo awarded. I, James H. McKenney, Clerk of the Supreme the foregoing is a true copy of the opinion of the Court of the United States, do hereby certify that Court in the case of Chester A. Arthur, Collector of the Port of N. Y., Piff. in Err., v. Edmund Unkart et al., No. 609, October Term, 1877, as the same remains upon the files and records of said Supreme Court. In testimony whereof I hereunto subscribe my name and affix the seal of said [L. S.] Supreme Court. at the City of Washington, this 20th day of March, A. D. 1885. James H. McKenney, Clerk, Supreme Court, U. S. CHESTER A. ARTHUR, Collector of the Port of New York, Plff. in Err., V. JOHN ZIMMERMAN. (See S. C., Reporter's ed., 124, 125.) Tariff Act, construction of. Articles commercially known as "hat braids," words of the Act of 1864, and would be subject to composed of cotton are embraced in the general the duty therein provided; but these articles are specifically enumerated in the Acts of 1861 and 1862, and are there made subject to a different and Arthur y. Morrison, ante, 764, Arthur v. a lower duty and under the principles laid down in ante, 766, and Arthur v. Unkart, ante, 768, the speLahey, cific designation should prevail. [No. 515.] Mr. Greenleaf, Greenl. Ev., sec. 80, thus lays down the rule: "So where the negative allegation involved criminal neglect of duty, official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for in these cases the presumption of law, which is always in favor of innocence and quiet posses- Argued Mar. 27, 1878. Decided Apr. 15, 1878. sion. is in favor of the party charged;" and many instances are cited. Again; it is to be observed that in the case of the articles in question, as with most other importations, they were admitted to be liable to some duty. Simply holding the goods for duty was not, therefore, of itself an illegality. It was only when they were held for more duty than the law justified that it became duress and illegal; and, to entitle himself to recover for the illegality, the plaintiff must show such excessive charge. If the collector had no authority in the premises, and could hold the goods for no amount whatever, a different question would arise. But here the very issue was as to amount, and the proof, therefore, of illegal amount rested upon the plaintiff. The case of Wilkinson v. Greely, 1 Curt. C. C., 63. is cited to sustain the ruling we are consid770 In Error to the Circuit Court of the United Mr. Edwin B. Smith, Asst. Atty. Gen., for Julian T. Davis and S. G. Clark, for defendant The rule to be followed in the construction 438; U. S. v. Chests of Tea, 9 Wheat., 431; Elliott v. Swartwout, 10 Pet., 151; Curtis v. | excess of duties paid by him was right, and Martin, 3 How.. 106. The application of the words "cotton braids" and "other manufactures of cotton not otherwise provided for." was determined so far as they could affect these "hat braids," and there is nothing in the Act of 1864, which shows any design or intention to enlarge the existing definition or to extend the application of these terms. The subsequent re-enactment of the different duties applicable to these several articles in the Revised Statutes is conclusive upon this point. A subsequent tariff statute must be read by the light of the first. must be affirmed. Affirmed. CHESTER A. ARTHUR, Collector of the Port of New York, Plff. in Err., V. ALPHONSE STEPHANI et al. (See S. C., Reporter's ed., 125-128.) Tariff Act-construction of. 1. Articles are not dutiable under general terms which may embrace them, where there is a duty plied to nothing else. imposed under specific language which can be ap It is fair to presume, in case a special meaning were attached to certain words in a prior tariff Act. that Congress intended they should have the same significations when used in a subsequent Act in relation to the same subject- able as confectionery under the Act of 1864. matter. 2. Chocolate, although in the form and of the character usually sold as confectionery, is not duti[No. 607.] Reiche v. Smythe. 13 Wall.. 162. 20 L. ed., Argued Mar. 27, 1878. Decided Apr. 15, 1878. 366; Homer v. Collector, 1 Wall.. 486, 17 L. ed., 688. The Revised Statutes are good evidence of the intent of Congress in the prior Acts which are there collated, and must be taken as a legislative declaration of the objects and purposes of previous laws. "It was the intention of Congress to collate all the statutes as they were at that date. and not to make any change in their provisions." Smythe v. Fiske. 23 Wall.. 374, 23 L. ed., 47. Mr. Justice Hunt delivered the opinion of the court: In 1873 and 1874. the plaintiff imported certain goods from France, which were composed of cotton, and commercially known as "hat braids." The Collector imposed upon them and collected, under protest, a duty of ninety per centum of thirty-five per centum ad valorem, under the 6th section of the Tariff Act of 1864, 13 Stat. at L.. 208. secs. 5, 6. That Act imposed this duty upon "cotton braids, insertings, lace trimmings or bobbinets, and all other manufactures of cotton not otherwise provided for." It appeared, upon the trial, that there were goods known as cotton braids. used for other purposes, but that the goods in question were commercially known as "hat braids," and used exclusively for making and trimming hats and bonnets. The articles are embraced in the general words of the Act of 1864, and, if there were nothing else in the case, would be subject to the duty therein provided. They are, however. commercially known as "hat braids." used exclusively for ornamenting hats and bonnets. These articles are specifically enumerated in the Acts of 1861 and 1862, and are there made subject to a different and a lower duty. By these Acts. and by the Revised Statutes, Congress established and recognizes the distinction between "cotton braids" and "other manufactures of cotton not otherwise provided for," and "hat braids." 12 Stat. at L., 178; 12 Stat. at L., 543, 551; R. S., sec., 2504. Under the principles laid down in the previous cases. the specific designation should prevail; and the judgment giving the plaintiff the In Error to the Circuit Court of the United States for the Southern District of New York. The case is stated by the court. plaintiff in error: Mr. Edwin B. Smith, Asst. Atty-Gen., for sugar or of chocolate, or a mixture of these or Confectionery may be wholly composed of other articles. The term is not indicative of the cle not intended to be used as a substitute for material used. This importation was of an articoffee, but to be sold and used as a confection. It was so sold and used. It was known to the dealers as confectionery. Therefore, it was properly dutiable as such. Mr. Edward Hartley, for defendants in error: In every general Tariff Act from 1842 to date, chocolate has been contrasted with confectionery, comfits, sugar-candy and sweetmeats, these articles being separately named in every general tariff Act, as different things from chocolate, and at different rates of duty; hence chocolate cannot, for duty purposes, be included in any one of those terms. Reiche v. Smythe, 13 Wall., 162, 20 L. ed.. 566; Homer v. The Collector, 1 Wall., 486, 17 L. ed., 688; Roosevelt v. Maxwell, 3 Blatchf., 391; DeForest v. Lawrence, 13 How., 281, 282; Movius v. Arthur, decided at this Term, No. 82 (ante, 420). Mr. Justice Hunt delivered the opinion of the court: It is admitted that during the year 1873. plaintiffs were partners, under the firm name of A. Stephani & Company, and that defendant was Collector of Customs at the Port of New York. The plaintiff as such firm imported at said port on October 4th, 1873, by The Calabria from Liverpool certain chocolate, upon which duty was exacted by said defendant as such Collector, at the rate of 50 per cent. ad valorem. That the said goods were chocolate, in boxes containing each thirty-six little bricks, each box weighing about half a pound; such bricks being each done up in a paper by itself, and being such as is ordinarily sold by confectioners, was valued at over thirty cents a pound. and is sold by the box or package, and is ordinarily sold as confectionery. Chocolate also comes in other forms. |