Congress is presumed to have used the "The general principle applicable to such appropriate words to convey its meaning, a case would seem to be, that revenue should and when these words are not of doubtful be collected only from the quantity or meaning the court must give them effect. It weight which arrives here. That is, what cannot substitute for the clear expressions is imported,-for *nothing is imported till it[284] which Congress has actually used, other ex-(comes within the limits of a port. See pressions which the court thinks Congress ought to have used.

our limits. That is the whole amount As mentioned in the preceding statement, which is entered at the custom house; that the collector of customs for the district ofis all which goes into the consumption of Baltimore treated the loss arising from the worthless condition of the portion of the cargo in question as a case of damage to the entire cargoes, within the meaning of $23 of the customs administrative act of June 10, 1890. That section reads as follows:

"It is also the quantity actually received here by which alone the importer is benefited. It is all he can sell again to customers. It is all he can consume. It is all he can re-export for drawback. 1 Stat. at L. 680-689, chap. 22; 4 Stat. at L. 29, chap. 136."

After instancing certain cases provided [285] for in a statute where a fixed percentage was directed to be deducted for leakage and breakage and a reduction in weight for tare and draff, the court further said (p. 633, L. ed. p. 288):

"But beside these instances, in cases of an actual injury to an article arriving here in a damaged state, a reduction from the value is permitted expressly on account of the diminished value. 1 Stat. at L. 41, chap. 5, 166, chap. 35, 665, chap. 22.

"The former cases referred to for illustration rest on their peculiar principles, and allowances in them are made by positive provisions in acts of Congress, even though the quantity and weight of the real article meant to be imported should arrive here. Because, knowing well that the whole is not likely to arrive, and being able to fix, by a general average, the ordinary loss in those cases with sufficient exactness, the matter has been legislated on expressly.

"Yet there are other cases of loss, from various causes, which may be very uncertain in amount, for which no fixed and inflexible rate of allowances can be prescribed, and which must, therefore, in each instance, be left to be regulated by the general provisions for assessing duties, and the general principles applicable to them, as before explained. Consequently, where a portion of the shipment in cases like these does not arrive here, and hence does not come under the possession and cognizance of the customhouse officers, it cannot, as heretofore shown, be taxed on any ground of law or of truth and propriety, and does not therefore require for its exemption any positive enactment by Congress.

"Such is the case of a portion being lost by perils of the sea, or by being thrown overboard to save the ship; or by fire, or piracy or larceny, or barratry, or a sale and delivery on the voyage, or by natural decay. If there be a material loss, it can make no difference to the sufferer or the government whether it happened by natural or artificial causes. In either case, the article to that extent is not here to be assessed, nor to be of any value to the owner.

"But much more should duties not be exacted on what was lost or destroyed on its way hither, and which never came even into the possession or control of the customhouse officers, and much less into the use of the community."

The doctrine of this decision clearly supports the proposition that it would be inequitable and presumably not within the intention of Congress to assess duty upon an article which on a voyage to this country and before arrival within the limits of a port of entry had become utterly worthless by reason of casualty, decay, or other nat ural causes, and which the importer might rightfully abandon and refuse to receive or enter for consumption. In other words, that articles thus circumstanced were not in truth within the category of goods, wares, and merchandise imported into the United States, within the meaning of the tariff laws. The ruling in Marriott v. Brune was approved and applied in United States v. Southmayd, 9 How. 637, 13 L. ed. 290, and Lawrence v. Caswell, 13 How. 488, 14 L. ed. 235, and it has been consistently recognized by this court that as a general rule duties are intended to be levied only upon the value of goods which possess some intrinsic or other value at the time when ordinarily the duty would attach on an article.

That the policy we have stated was regarded by Congress as the true doctrine to be applied, is shown by the legislation with respect to the remission of duties upon goods, wares, and merchandise in general, to the extent that the same were damaged. Thus, as stated in United States v. Bache, 8 C. C. A. 258, 20 U. S. App. 286, 59 Fed. 762, 763, the statutory system, from 1799 to the adoption of the tariff act of October 6, 1890, in regard to rebates of duties on account of damage to imported merchandise in transit, was embodied in § 2927 of the Revised Statutes, being a substantial reproduction of a section of the act of 1799. The section of the Revised Statutes reads as follows:

*"Sec. 2927. In respect to articles that[287] have been damaged during the voyage, whether subject to a duty ad valorem, or chargeable with a specific duty either by number, weight, or measure, the appraisers shall ascertain and certify to what rate or percentage the merchandise is damaged, and the rate of percentage of damage, so ascertained and certified, shall be deducted from the original amount subject to a duty ad valorem, or from the actual or original

"To add to such unfortunate losses, the burden of a duty on them, imposed afterwards, would be an uncalled-for aggravation, would be adding cruelty to misfor-number, weight, or measure, on which spe[286]tune, and would not be justified by any allowance, however, for the damage on any cific duties would have been computed. No sound reason or any express provision of law. On the contrary, Congress, in several merchandise that has been entered, and on instances, when the articles imported actu- which the duties have been paid or secured ally arrived here, and were afterwards de- to be paid, and for which a permit has been stroyed by fire before the packages had been granted to the owner or consignee thereof, opened and entered into the consumption of and which may on examining the same the country, have refunded or remitted the prove to be damaged, shall be made, unless duties. 2 Stat. at L. 201, chap. 6; 5 Stat. proof to ascertain such damage shall be at L. 284, chap. 174; 6 Stat. at L. 2, chap. lodged in the custom house of the port where such merchandise has been landed

20.

within ten days after the landing of such been made. In the course of the decision, merchandise." known as treasury decision No. 3,236, of So, also, by § 2921 of the Revised Stat- date May 14, 1877, after ruling that the utes [U. S. Comp. Stat. 1901, p. 1929], it"quantity" specified in the act of July 14, was provided as follows: 1870 [16 Stat. at L. 265, chap. 255, § 21], limiting allowances for damage to green fruit, referred to the quantity specified in the damage application and landed in the United States, it was observed (italics not in the original):

“Sec. 2921. If, on the opening of any package, a deficiency of any article shall be found, on examination by the appraisers, the same shall be certified to the collector on the invoice, and an allowance for the same be made in estimating the duties."

"In many instances a portion of a cargo of green fruit becomes wholly worthless by decay, and such portion is to be excluded in considering the quantity upon which damage is to be estimated, unless it is included in the damage warrant."

By the act of July 14, 1870 (16 Stat. at L. 265, chap. 255), however, an exception was ingrafted upon the general provision as to allowances for damage which might have resulted to goods, wares, and merchandise on the voyage, by the enactment that no al- In treasury decision No. 3,272, dated lowance should be made with respect to cer- July 21, 1877, passing upon a case where an tain fruits, for loss by decay on a voyage, importer, in his application for damage *al-[289] unless the same should exceed 25 per cen- lowance upon 41 barrels of oranges, intum of the whole quantity, and the allow- cluded as part of the 41 barrels, 204 barance then made should be only for the rels of entirely worthless oranges, it was deamount of loss in excess of 25 per centum clared that, if the goods had been landed in of the whole quantity. As said in Scatter- the United States as any other merchandise, good v. Tutton, 2 Fed. 28, the limitation and no damage application had been filed, was applied "manifestly to avoid allowance duty would have accrued thereon; whereas for trifling losses." While, however, cer- if they had been thrown overboard at sea, tain fruits were made dutiable by the tariff no duty would accrue, as there would have act of March 3, 1883 (22 Stat. at L. 504, been no importation of that quantity. In chap. 121), and certain other fruits (in-treasury decision No. 4,126, of date August cluding pineapples) were placed on the free 1, 1879, upon application being made for list (ld. 519, chap. 121), the discrimination a damage allowance upon an invoice of cerreferred to against damage allowances upon [288] importations of fruit was not continued, and in § 23 of the customs administrative act of 1890 fruits are not discriminated against.

tain oranges and lemons, the goods were reported damaged "to the extent of 100 per cent,-in other words, entirely worthless." The ruling in treasury decision No. 1,167 was applied, and it was held that, where fruit was so damaged on the voyage of importation as to be entirely worthless, the clause in the statute limiting the damage allowance to the excess over 25 per cent did not apply, and that the case should be treated the same as if no importation had been made. Treasury decision No. 9,719, dated November 19, 1889, reads as follows:

In its decisions upon applications of importers to be exempted from payment of duties because of the practical destruction of an article while in transit to this country, or for an allowance because of damage occasioned to imported goods before arrival here, the Treasury Department has frequently applied the doctrine enunciated by this court in Marriott v. Brune, viz., that "Sir: The Department is in receipt of the purpose of Congress in enacting tariff your letter of the 13th instant, reporting laws was to exact the payment of duty only further on the appeal (537x) of Messrs. upon imported articles which were, in truth Riley & Grey from your assessment of duty and in fact, entitled to the appellation of on certain card clothing, imported by them goods, wares, and merchandise, articles per 'Bulgarian' February 16, 1889, and which were not absolutely worthless, but found, upon examination, to have been demay possess some value for use or consump-stroyed by water during the voyage of imtion. Thus, in treasury decision No. 424, portation.

coil, oxidizing the wire and completely rotting the cotton backing, so that it is absolutely worthless, and cannot be used for any purpose whatever, even as old junk.

of date July 15, 1869, duties were ordered "The appraiser reports that the clothing to be remitted on four cases of needles in question was wound in coils, and has which had become worthless by reason of been subjected to a complete soaking with being submerged in salt water on the voy-salt water, which has permeated the entire age of importation. It was held that the case did not come within the prohibition of the 33d paragraph of the 3d section of the act of July 14, 1862 [12 Stat. at L. 546, chap. 153], which prescribed that no allowance for partial loss or decay should be made in consequence of rust of iron or steel, etc. Again, in treasury decision No. 1,167, of date July 8, 1872, fruit which had become worthless on the voyage of importation was held not dutiable, and the provision of the act of July 14, 1870, limiting the damage allowance on fruit, was held not to apply, and it was ordered that the case should be treated as if no importation had

"In view of this report, the Department is of opinion that the card clothing is not an importation of merchandise within the meaning of the law, and you are hereby authorized to readjust the entry and to refund the duty levied thereon."

After the passage of the customs administrative act of June 10, 1890, the board of general appraisers, on June 6, 1891, announced its decision upon a protest against the exaction of duty on an alleged shortage [290

of 35,700 oranges, part of an invoice of 280,000 oranges, on which entry had been made and the duty paid. The shortage was not ascertained until after the payment of the duties, and such shortage was presumably represented by a quantity of "rots and slush," which had been removed from the vessel in obedience to the health ordinance of the city of Baltimore. The collector and naval officer reported that they were satisfied by proof that the 35,700 oranges became rotten and worthless on the voyage and never went into consumption. It was held that the collector was authorized to make allowance for the shortage in the liquidation of the duty on the entries. In the course of the decision it was said:

glass in the cases occurred during the voyage. The cases all arrived. The contents were not destroyed, but were damaged. It was clearly a case within the language of § 23, and no question would have arisen but for the fact that 'broken glass, fit only to be remanufactured,' was by law exempt from duty and admitted free. The importer claimed that as during the voyage a portion of each case became broken glass, its character as merchandise was changed, and it became an article specifically exempted from duty and entitled to come in free, and that it made no difference that the dutiable and non-dutiable goods happened to come into this country in the same box. He claimed that he was chargeable with duty "As they could not be abandoned in the on the merchandise as it came into this manner provided for the abandonment of country, and not as it was when it was merchandise in § 23 of the act aforesaid, the put aboard the ship in the foreign port. collector exacted duty upon the entire en-It was held by the circuit court of appeals try. Article 609 of the general regulations for the second circuit that, Congress having permits an allowance for lost or missing ar- enacted a general statutory system for the ticles when it is shown by proof satisfactory ascertainment of the damage to imported to the collector and naval officer that they goods, and for allowance in respect to such have been lost or destroyed by accident dur-damage, it could not be supposed that daming the voyage. Loss of fruit by decay may reasonably be held to be an accident, it be ing a loss by a contingency, chance, or casualty. Section 23 aforesaid would not apply where there had been a total loss of dutiable articles, for the word 'damaged' is there used in the sense of impairment or injury, and the section contemplates that something remains to be abandoned."

Treasury decision No. 16,138, dated June 8, 1895, related to a claim of allowance for shortage on an importation of cocoanuts, the shortage being occasioned by the rotting and breaking of certain cocoanuts on the voyage of importation. In consequence of the ruling in United States v. Bache, 8 C. C. A. 258, 20 U. S. App. 286, 59 Fed. 762, wherein it was held that glass broken on the voyage of importation, but which possessed some value for manufacture, should be allowed for as a damage within the meaning of § 23 of the customs administrative act of 1890, the Treasury Department refused to accept the doctrine laid down by the board of general appraisers, viz., that merchandise the value of which is totally destroyed ceases to be damage, and [291]may properly be treated as a shortage. This last was but another form of stating the proposition that that which has been rendered worthless on the voyage to this country, by casualty, decay, or other natural causes, is not embraced within the category of goods, wares, and merchandise, even though existent on the vessel on its arrival within the limits of a port of entry. On the controversy, however, being brought into the courts, the decision of the board of general appraisers was upheld. Shaw v. Dia, 72 Fed. 166. In distinguishing the case before it from the Bache Case the court said (p. 167):

"In United States v. Bache, 8 C. C. A. 258, 20 U. S. App. 286, 59 Fed. 762, the facts presented raised a very different isThe importation was glass in cases or packages, and a considerable breakage of

sue.

ages to importations of glass were to be ex-
empted out of that general system simply
because importations of broken glass had
been put on the free list, and held that there
was nothing indicating an intention by Con-
gress to take the one article of glass out
of the general system. The general system
provides that if the damage amounts to 10
per cent of the total invoice, the importer
may abandon any portion of the *invoice[292]
and be relieved from the duties on the por-
tion so abandoned.

"I think it is clear that the board of gen-
eral appraisers was right in holding, in de-
ciding the present case, that this section
contemplated a case where there remains
something 'to be abandoned, in the sense of
being impaired in value, but that it is not
applicable to a case where specific items of
the invoice have been so entirely destroyed
as that, in reckoning up to the items of the
invoice, they cannot be counted, and where
the destroyed items are valueless, and there
remains nothing which can be the subject of
abandonment. Section 23 of the act of
1890 is not inconsistent with the general
provisions of § 2921 of the Revised Statutes
[U. S. Comp. Stat. 1901, p. 1929], nor with
§§ 906 and 922 of the general regulations,
providing that, if the quantity which ar
rives is less than the invoice, there may be
an allowance for the deficiency. In the
present case it was not possible for the ap-
praisers to say what number of cocoanuts
was contained in the mass of débris re-
maining after the discharge of the cargo.
It was estimated that this mass contained
the difference between the number
charged and the number stated in the in-
voice. But the number specified in the in-
voice is not the result of an accurate count,
the nuts being often brought on board in
small boats through the surf, so that it is
not possible to say with any accuracy what
number the mass of débris did represent.
It is quite manifest that there is no ground
for the contention that § 23 is applicable to

dis

this case. The decision of the board of gen-embracing articles which upon arrival in[294]
eral appraisers is sustained."
this country were outside of the category of
imported goods, wares, and merchandise,
such articles must be held, in accordance
with the prior rulings on the subject, not
to be susceptible to assessment for duty. If,
as is conceded by the government, the rotten
and worthless pineapples in question had
been thrown overboard before the vessel
reached this country, and no duty could
have been assessed upon the fruit thus dis-
posed of, the circumstance that the mass of
rotten fruit in question could not, perhaps,
have been gotten at upon the voyage by rea-
son of the extent and character of the cargo
of which it formed a part, so as to permit
of the worthless stuff being dumped over-
board before the arrival of the vessel in the
United States, ought not, in justice, to de-
bar the importer from successfully contend-
ing that the worthless material when it
reached this country was not goods, wares,
or merchandise within the intent of the
tariff acts.

Article 1236 of the customs regulations of 1899 was referred to in the argument at bar as supporting the contention on behalf of the government that Congress intended by 8 23 of the customs administrative act of June 10, 1890, to classify everything reaching this country, invoiced from a foreign port, as imported goods, wares, and merchandise, however worthless specific articles might have become during the voyage. But the regulation lends no support to this contention. It was based upon § 2984 of the Revised Statutes [U. S. Comp. Stat. 1901, p. 1958], which conferred authority upon the Secretary of the Treasury to remit impost [293]*duties paid or accruing upon imported merchandise which had been injured by accidental fire or other casualty after arriving in this country and while in the actual or constructive possession of the officers of the government. In effect, by the terms of the regulation, § 2984 of the Revised Statutes [U. S. Comp. Stat. 1901, p. 1958], is construed as not conferring authority upon the Secretary of the Treasury to make allowances for any deterioration or damage to such merchandise from natural or avoidable causes, arising after the arrival of merchandise and the attaching of duties thereon, a ruling which throws no light upon the proper decision of the question we are considering.

Judgment of the Circuit Court of Appeals is reversed; judgment of the Circuit Court affirmed; and the cause remanded to that court, with a direction to carry its judg ment into effect.

CHEROKEE NATION et al., Appts.,

v.

Interior.

(See S. C. Reporter's ed. 294-308.)

Equity—jurisdiction necessary parties— Indians-leases of minerals in tribal lands-executive department-matters of administration-power of Congress over

1.

Indians.

A sufficient showing of equitable jurisdiction

is made by a bill filed by the Cherokee Nation to restrain any further action by the Secretary of the Interior upon applications for leases of its tribal lands for mining purposes, which contains general allegations of the absence of an adequate remedy at law, the necessity of relief to avoid a multiplicity of suits and to prevent the casting of a cloud upon the title, and a claim that irreparable injury will be caused, and wrong and oppression result, and that there will be a deprivation of property rights.

When Congress enacted the customs ad- ETHAN A. HITCHCOCK, Secretary of the ministrative act of 1890 it must be presumed to have possessed knowledge of the decisions of this court to which we have referred and the consistent application made of the doctrine of those decisions by the officials charged with the execution of the tariff laws, as evidenced by the cited treasury decisions. In the light of this fact, it would require a clear expression by Congress of its intention to adopt a contrary policy, before a court would be justified in holding that such was the purpose of the legislative branch of the government. Section 23 of the customs administrative act contains no such clear expression of an intention to alter the prior practice, but the contrary. The reference in § 23 to an allowance for "damage," and the provision that the abandoned portion of cargo should "be sold by public auction or otherwise disposed of for the account or credit of the United States." manifestly imports that it related to an article which, when the duty attached, was possessed of some value, and therefore negatives the idea that Congress was concerning itself with that which was destitute of all value. When, therefore, it was enacted that in a certain contingency no allowance should be made for "damage to goods, wares, and merchandise imported into the United States," it is reasonable to construe this language as not referring to an article, case, or package, which, though in the semblance of merchandise, had become absolutely valueless by reason of natural causes or casualty occurring thereto while the article, case, or package was in transit to the United States. The section then not

2.

A corporation referred to in a bill to re

strain any further action by the Secretary of the Interior upon applications for leases of Indian lands for mining purposes, as one NOTE. As to Federal jurisdiction and control the Indians-see note to Worcester V. over Georgia, 8 L. ed. U. S. 483.

As to necessary parties in equity—see note to Marshall v. Beverley, 5 L. ed. U. S. 97.

On the separation of the departments of gov ernment-see notes to Titusville Iron Works ▼.

Keystone Oil Co. (Pa.) 1 L. R. A. 361; Fleming
v. Guthrie (W. Va.) 3 L. R. A. 53; King v.
State (Tenn.) 3 L. R. A. 210; and State ex rel.
Jameson v. Denny (Ind.) 4 L. R. A. 79.

On the construction and operation of treaties -see note to United States v. The Amistad, 10 L. ed. U. S. 826.