Opinion of the Court.

government holding the title, with the rights of a remainder

man.

In the courts of original jurisdiction, it has been uniformly held that a similar rule applied to homestead entries. United States v. McEntee, 23 Internal Revenue Record, 368; United States v. Nelson, 5 Sawyer, 68; The Timber Cases, 11 Fed. Rep. 81; United States v. Smith, 11 Fed. Rep. 487, 493; United States v. Stores, 14 Fed. Rep. 824; United States v. Yoder, 18 Fed. Rep. 372; United States v. Williams, 18 Fed. Rep. 475; United States v. Lane, 19 Fed. Rep. 910; United States v. Freyberg, 32 Fed. Rep. 195; United States v. Murphy, 32 Fed. Rep. 376. This general consensus of opinion is entitled to great weight as authority.

While we hold in this case that, as between the United States and the settler, the land is to be deemed the property of the former, at least so far as is necessary to protect it from waste, we do not wish to be understood as expressing an opinion whether, as between the settler and the State, it may not be deemed the property of the settler, and, therefore, subject to taxation. Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210; Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. MacShane, 22 Wall. 444; Wisconsin Central Railroad v. Price County, 133 U. S. 496.

As the land in question continued to be "the land of the United States," within the meaning of section 2461,

The first question must be answered in the negative, and the second in the affirmative.

Statement of the Case.

PATTON v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

No. 86. Argued October 16, 1895. - Decided November 11, 1895.

The plaintiffs in error imported into the port of New York in November, 1888, a quantity of wool which had been scoured; which was then put upon a comb from which it came in long lengths known as slivers or slubbing; which was then put through a process called gilling, which formed the slivers into a less number of slivers of greater thickness; and which was then taken into the drawing room and finished, from whence it came out in the form of round balls called tops. The collector first classed the goods as waste, and fixed the duty at ten cents a pound under the act of March 3, 1883, c. 121, 22 Stat. 408, which duty was paid; but subsequently the collector imposed on the whole importation, under the same act, a duty of ten cents a pound as wool of the first class, costing under thirty cents per pound in the unwashed condition; then trebled that duty, because imported scoured; and then doubled the result upon the ground that the tops had been changed in their character or condition for the purpose of evading the duty. The importer declined to pay the excess of duty so imposed, and the United States commenced this action to recover it. Held, That the duty of sixty cents a pound was properly imposed, and that there was no error in the rulings of the trial court which are set forth in the opinion of this court.

THIS was an action by the United States in the District Court against the importing firm of George W. Patton & Co. to recover certain duties claimed to be due on thirty-three bales of merchandise entered by the importers as "wool waste," and claimed by them to be dutiable at ten cents per pound under the following clause of schedule K of the tariff act of 1883: "Woollen rags, shoddy, mungo, waste, and flocks, ten cents per pound." At the time of the importation (November, 1888) the duties were accordingly assessed and paid at this

rate.

The appraiser subsequently returned the goods as scoured wool, broken tops, class 1, costing under thirty cents per pound in the unwashed condition, sixty cents per pound." The collector accordingly fixed the duty at sixty cents per

Statement of the Case.

pound, under the following paragraphs of the act of March 3, 1883, c. 121, 22 Stat. 488, 508.

"All wools

shall be divided, for the purpose of

fixing the duties to be charged thereon, into the three following classes:

"Class one, clothing wools- that is to say, merino wools," etc.

"The duty on wools of the first class which shall be imported washed shall be twice the amount of the duty to which they would be subjected if imported unwashed; and the duty on wools of all classes which shall be imported scoured shall be three times the duty to which they would be subjected if imported unwashed."

"The duty upon wool which shall be imported in any other than ordinary condition, as now and heretofore practised, or which shall be changed in its character or condition for the purpose of ovading the duty

shall be

twice the duty to which it would be otherwise subject."

The collector first imposed a duty of ten cents a pound upon this as wool of the first class, costing under thirty cents per pound in the unwashed condition, then trebled this duty, because they were imported scoured, and again doubled the result upon the ground that they had been changed in their character or condition for the purpose of evading the duty. This made the aggregate duty sixty cents per pound, which appears to have been greater than the whole value of the goods. To recover the difference paid upon the entry and the duty imposed by the collector, the United States brought this suit.

Upon trial before a jury, the court charged that the impor tation in question could not be considered as wool waste, as it did not consist of refuse or broken particles thrown off in the process of manufacture, and was made intentionally by tearing up what are called "wool tops," which consist of wool which has been subjected to several processes, and prepared for spinning; and that it could not be considered as a manufacture of wool; and hence the court left it to the jury to say whether the wool was imported scoured, and in a condition other than that in which such wool was customarily imported in March,

Opinion of the Court.

1883, and previously. The court expressed the opinion that the plaintiff was entitled to recover the amount of the duties assessed, but submitted the case to the jury upon the evidence.

The jury found a general verdict for the plaintiff in the sum of $10,887.26, and further found, in answer to a special question submitted to them by agreement, "that the tops which were broken into fragments constituting this importation were so broken for the purpose of changing the condition of the wool from tops into the fragments resembling waste, for the purpose of evading the duty to which the wool in the form of tops would be subjected on importation into this country, or evading duty to which the importers believed the tops would be liable."

Judgment having been entered upon this verdict, defendant sued out a writ of error from the Circuit Court of the United States, which affirmed the judgment of the court below. Defendants thereupon sued out a writ of error from this

court.

Mr. Frank P. Prichard, (with whom was Mr. John G. Johnson on the brief,) for plaintiffs in error.

Mr. Assistant Attorney General Whitney for defendants in

error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

1. The first assignment of error is that which is taken to the instruction to the jury that the importation in question, though called wool waste, seems to be so called only because of its resemblance to what was formerly known by this designation; that it does not consist of refuse or broken particles thrown off in the process of manufacture, but is made intentionally, by tearing up what are called "wool tops," which consist of wool which has been put through several processes and prepared for spinning, and that the term "waste" did not embrace this commodity.

The correctness of this instruction turns upon the meaning

Opinion of the Court.

of the words "woollen waste," as used in the act of 1883. As bearing upon this, we are at liberty to consider its ordinary definition, which will be controlling, except so far as it may be varied by a commercial designation obtaining at that time. Saltonstall v. Wiebusch, 156 . S. 601. Waste is defined by Webster as "that which is of no value; worthless remnants; refuse. Specifically: remnants of cops, or other refuse resulting from the working of cotton, wool, hemp, and the like, used for wiping machinery; absorbing oil in the axle boxes of railroad cars, etc." In this connection, and in the same clause of the statute, other words are included, undoubtedly referring to articles of the same or of a similar nature. These are 66 rags; shoddy," defined as "a fibrous material, obtained by 'devilling' or tearing into fibres, refuse woollen goods, old stockings, rags, druggets, etc.;""mungo," which properly signifies the disintegrated rags of woollen cloth, as distinguished from those of worsted, which form shoddy; and "flocks," defined as "woollen or cotton refuse, old rags, etc., reduced to a degree of fineness by machinery, and used for stuffing upholstered furniture;" and also as "very fine sifted woollen refuse, especially that from shearing the nap of cloths, used as a coating for wall paper to give it a velvety or cloth-like appearance." The prominent characteristic running through all these definitions is that of refuse, or material that is not susceptible of being used for the ordinary purposes of manufacture. It does not presuppose that the article is absolutely worthless, but that it is unmerchantable and used for purposes for which merchantable material of the same class is unsuitable.

The importation in question consisted of wool which had been scoured, then carded and prepared; then put upon a comb, from which it comes in long lengths, known as slivers or slubbing. It is then put through a process called gilling, which forms the slivers into a less number of slivers of greater thickness. These slivers are then taken into the drawing room and finished, from whence they come out in the form of round balls, called "tops." These tops become new articles of merchandise, which are sold to the spinners, who spin them into worsted yarn.