CITY OF NEW CASTLE v. POSTAL TELEGRAPH-CABLE CO. (Circuit Court, W. D. Pennsylvania. March 23, 1907.) No. 9. REMOVAL OF CAUSES-MOTION TO REMAND-BURDEN OF PROOF. On a motion to remand a cause to the state court, a mere allegation by defendant in an answer filed to the rule that the case involves a construction of the Constitution or laws of the United States is not sufficient to show jurisdiction in the federal court, without a statement of facts showing how such question can arise, and the nature and character of it. [Ed. Note. For cases in point, see Cent. Dig. vol. 42, Removal of Causes, 230.] In Equity. On motion to remand to state court. James A. Gardner, for complainant. B. A. Winternitz and Rodgers, Blakely & Calvert, for respondent. EWING, District Judge. This case is similar in all respects to that of the City of New Castle v. Western Union Telegraph Company, 152 Fed. 569, in which an opinion has just been filed, except that in the answer on the rule to show cause why the cause should not be remanded the defendant denies that the matter in dispute does not exceed the sum or value of $2,000, exclusive of interest and costs, and avers that a decree granting the relief prayed for by the plaintiff would subject the defendant to expense and damage greatly in excess of the sum of $2,000, exclusive of interest and costs, and that the value of the defendant's rights affected by this suit largely exceeds the sum of $2,000, exclusive of interest and costs; and, in addition, states that the defendant maintains many thousand offices throughout the United States for receiving and transmitting messages, from each and every of which intercommunication is had with each and every other office in the United States, including each and every such office in the state of Pennsylvania; that the defendant is therefore engaged in interstate commerce, and its poles and wires in the said city of New Castle form. a part of the equipment of a through system of telegraph lines over which it transmits messages, not only throughout the United States, but to and from all parts of the civilized world; that by virtue of its compliance with the act of Congress approved July 24, 1866 (14 Stat. 221, c. 230), it is authorized to construct, maintain, and operate its lines of telegraph over and along any of the post roads of the United States, and that by the Act Cong. March 1, 1884, c. 9, § 1, 23 Stat. 3 [U. S. Comp. St. 1901, p. 2708], all public roads and highways kept up and maintained are declared to be post roads, and that the said highways passing in and through the said city of New Castle are post roads within the meaning of the act of Congress aforesaid, and therefore that the matter in dispute in this suit arises under the Constitution and laws of the United States, and for that reason alone the case is within the jurisdiction of this court. Regarding the allegations as to the amount here in controversy, although stated in somewhat different language from that employed by the Western Union Telegraph Company in the case referred to, they amount substantially to the same thing, and rise no higher than an allegation of that jurisdictional fact, without any evidence in support thereof, and are therefore met by the allegations of the plaintiff to the contrary. What has therefore been said in the case against the Western Union Telegraph Company is equally applicable here. The burden rests on the defendant and it has not produced the necessary evidence to support its contention. Its allegations as to interstate commerce and its occupation of post roads are here introduced for the first time, and formed no part of the ground upon which it based its petition for the removal of the cause from the courts of Lawrence county, and, moreover, are not supported by any facts which show in what way any question does arise in this case involving any construction of the Constitution or laws of the United States. A mere allegation to that effect, without a statement of facts showing how such question can arise, and the nature and character of it, but rather giving only a legal conclusion, is insufficient. Gold-Washing & Water Company v. Keyes, 96 U. S. 199, 24 L. Ed. 656; Carson v. Dunham, 121 U. S. 426, 7 Sup. Ct. 1030, 30 L. Ed. 992. It does not appear, therefore, that there is any better cause in this case for supporting the jurisdiction of this court than in that against the Western Union Telegraph Company, and for the reasons above given, in addition to those stated in the opinion filed in the case against the Western Union Telegraph Company above referred to, the rule is made absolute, and the case is remanded. GEORGE NASH & CO. v. UNITED STATES. (Circuit Court, S. D. New York. January 18, 1907.) 1. CUSTOMS DUTIES-CLASSIFICATION-SCREW RODS. Construing the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1636], for iron rods cold, drawn, or polished in any way in addition to the process of hot rolling, held, that it does not include wire screw rods which have been cold rolled to facilitate their use in screw-making machines, and which have incidentally acquired a polish, but that such articles are dutiable as wire screw rods under paragraph 141, 30 Stat. 162 [U. S. Comp. St. 1901, p. 1640.] 2. SAME CONSTRUCTION-SPECIFIC DESIGNATION-GENERAL PROVISIONS. When Congress has designated an article by a specific name, and by such name imposes a duty upon it, 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. On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,338 (T. D. 27,288), relating to importations at the port of New York. Kammerlohr & Duffy (Joseph G. Kammerlohr, of counsel), for the importers. J. Osgood Nichols, Asst. U. S. Atty. HAZEL, District Judge. Screws are manufactured by machinery from screw rods; and, in order not to injure the machine, the screw. rod must be smooth and have a round, even surface. Accordingly, raw iron rods, which are ordinarily uneven or scaly, are cold drawn through a die to give them the required smoothness or polish, so as to readily enable their insertion into the screw-making machine. The polish or bright appearance produced by the process of cold drawing is not necessary to the purpose for which the wire-screw rods in question were imported. The proofs show that there were two shipments of merchandise, the first being classified by the collector as round. steel bars, and duty was assessed thereon at the rate of nine-tenths cent per pound under the provisions of paragraph 135, Act of July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 161 [U. S. Comp. St. 1901, p. 1638]. The later shipments were returned by the collector as coldrolled and brightened screw rods; duty being assessed at four-tenths cent plus one-half cent per pound under paragraph 136 of said act, which provides that all iron or steel wire rods which have been tempered or treated in any manner or partly manufactured shall pay an additional duty of one-half of 1 cent per pound. The importers protested, claiming the merchandise to be dutiable. at only four-tenths cent per pound under paragraph 136 as wire screw rods valued at 4 cents or less per pound. The board decided that the collector was in error in assessing an additional duty of one-half cent per pound, and that the assessment should have been under paragraph 136, with the additional duty under paragraph 141, which provides for payment of one-fourth cent per pound upon iron or steel bars or rods which are cold rolled or cold drawn or polished in any way in addition to the usual process of hot rolling specifically described in paragraph 136. The question presented by the record is whether the cold rolling of the rods to make them smooth and facilitate their use in the screwmaking machine is the cold drawing specified in paragraph 141 of the act. In my opinion the rods in question have not been advanced by tempering or treating them to such an extent as to carry them beyond what is understood in the trade as wire screw rods. The testimony given in this court, and which was not before the board, indicates that such screw rods are not subject to the additional duty under the provisions of paragraph 141, which specifically provides for the payment of duty on iron or steel bars or rods of whatever shape or section, which are cold rolled, cold drawn, or polished. Brightening of the surface of the screw rod is subordinate and incidental to the smoothing or coldrolling process which is essential to the production of the screw rod. In this respect, I think the case is similar to United States v. Crucible Steel Company (C. C.) 147 Fed. 537, T. D. 27,446. There it was specifically held that cold-rolled steel strips, the brightening thereof being incidentally acquired in the process of cold rolling, are not subject to the additional duty provided in paragraph 141. Moreover, wire screw rods are enumerated eo nomine in paragraph 136, and they are not thought to be covered or included in the general language of paragraph 141. In Arthur v. Lahev, 96 U. S. 112. 24 L. Fd. 766, the rule is laid down that when Congress has designated an article by a specific name, and by such name imposes a duty upon it, the 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. For the foregoing reasons the merchandise, in my judgment, was dutiable under paragraph 136 at four-tenths cent per pound, and not subject to the imposition of any additional duty. It is not necessary to pass upon the question of the sufficiency of the protest. The decision of the board is reversed. UNITED STATES v. MULLER, MACLEAN & CO. (Circuit Court, S. D. New York. January 28, 1907.) CUSTOMS DUTIES-APPRAISEMENT ACTUAL MARKET VALUE-PRO FORMA IN- Merchandise was entered on a pro forma invoice which erroneously stated its value to be greatly in excess of its real value. On appraisement the appraiser approved the value so stated, because it was found to be sufficiently high, but did not find its real value. Held, that the appraisement was invalid because not in compliance with Customs Administrative Act June 10, 1890, c. 407, § 10. 26 Stat. 136 [U. S. Comp. St. 1901, p. 1922], prescribing that it should be the duty of appraisers to find "the actual market value" of imported merchandise. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Customs Duties, §§ 181, 183.] On Application for Review of a Decision of the Board of United States General Appraisers. The decision in question sustained the importers' protest against the assessment of duty by the collector of customs at the port of New York. J. Osgood Nichols, Asst. U. S. Atty. Kammerlohr & Duffy (John G. Duffy, of counsel), for importers. HAZEL, District Judge. The merchandise (mica) was assessed for duty by the collector at its entry value indicated in the pro forma invoice. Subsequently the importer claimed that a clerical mistake had been made, and that, according to the consular invoice, the mica should have been valued at the sum of $204, instead of the sum of $632, as shown in the pro forma invoice. There was no reappraisement of the merchandise by the collector. Neither did the importer give notice of dissatisfaction upon which a reappraisement could have been had in conformity with section 13 of the tariff act of 1897. Therefore the government contends that the importer cannot now be heard to claim a less valuation of the merchandise. It is urged, however, by the importer that there was no valid appraisement of the mica; that the valuation as a result of appraisement never became final and conclusive; and, therefore no reappraisement upon notice of the importer was necessary. By the provisions of section 10 of the act of June 10, 1890, c. 407, 26 Stat. 136 [U. S. Comp. St. 1901, p. 1922], it was the duty of the appraiser by all reasonable ways and means in his power "to ascertain, estimate, and appraise (any invoice or affidavit thereto, or statement of cost, or of cost of production, to the contrary, notwithstanding), the actual market value and wholesale price of the merchandise at the time of exportation to the United States, in the principal markets of the country whence the same has been imported." There is no dispute as to the value of the merchandise; for the government practically concedes that a clerical mistake was made, and that the consular invoice correctly stated the value of the same. The examiner inspected the shipment, but I incline to the opinion that an appraisement such as contemplated by the tariff act was not made. The examiner evidently based his appraisement largely if not altogether upon the pro forma invoice, the value of the goods as therein stated, and not with the degree of care and the exercise of power that is required by the act. Upon that point the testimony of the witness Hyder, the official examiner in the appraisers' office, after stating that he inspected and appraised the goods, is as follows: "Q. When you say that you appraised it, do you mean that you determined its value from such information as you had apart from the pro forma invoice? A. Yes, sir; that is, I determined the value was sufficient. "Q. You did not inquire whether the value was too high? A. No, sir. "Q. So when you say you appraised, you mean simply that you were satisfied that the pro forma invoice value was not too low? A. Yes; not too low. "Q. You did not fix the market value of the merchandise? A. No, sir; did not fix a positive price.". The contention of the government that the appraisement of the merchandise as made is final and conclusive, has no application to a case where the appraisement was evidently made contrary to law and not within the provisions of the tariff act. United States v. Beer (T. D. 27,753). See, also, United States v. Commercial Cable Company, G. A. 5,856 (T. D. 25,801), affirmed by the Circuit Court for this district, reported in T. D. 26,494 (141 Fed. 473). And the distinction made by the United States attorney is inapplicable to a case where no valid appraisement has been made. It sufficiently appears that there was error in relation to the value of the merchandise; and, as the bona fides of the importers is unquestioned, the action of the Board of General Appraisers in reversing the collector was proper, and must be affirmed. N. ERLANGER, BLUMGART & CO. v. UNITED STATES. 1. CUSTOMS DUTIES-APPRAISEMENT-CONVERTERS' COMMISSIONS. Merchandise was bought from so-called converters, who, after receiving the order, had the goods manufactured, dyed, and finished, and forwarded them, invoicing them at a certain price plus a commission. Held that the converters were in fact the vendors of the merchandise, and that the amount of the commission should be included in the dutiable value of the goods. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Customs Duties, $ 187.] |