Schedule F of section 2502 of Title 33 of the Revised Statutes,
as enacted by section 6 of the Act of March 3, 1883, c. 121, 22
Stat. 503, provided as follows in regard to duties on imported
tobacco:
"Leaf tobacco, of which eighty-five percent is of the requisite
size and of the necessary fineness of texture to be suitable for
wrappers, and of which more than one hundred leaves are required to
weigh a pound; if not stemmed, seventy-five cents per pound; if
stemmed, one dollar per pound. All other tobacco in leaf,
unmanufactured, and not stemmed, thirty-five cents per pound."
Tobacco was imported in bales, each of which contained a
quantity of Sumatra leaf tobacco answering the description in the
statute of that dutiable at 75 cents per pound, except that it
formed only about 83 percent of the contents of the bale. The rest
of the bale consisted of inferior leaf tobacco, called "fillers,"
which was separated from the 75-cent tobacco by strips of paper or
cloth, making the one kind readily separable from the other on the
opening of the bale. More than 85 percent of the 75-cent tobacco
answered the description of tobacco dutiable at that rate.
Held that the whole of the 75-cent tobacco was dutiable at
that rate, and that the contents of the bale as a whole were not
dutiable at 35 cents per pound.
The unit upon which the 85 percent was to be calculated was not
the entire bale.
The case of
Merritt v. Welsh, 104 U.
S. 694, distinguished.
This is an action at law brought in the supreme court of the
State of New York by Gustav Falk and Arnold Falk against William H.
Robertson, late collector of the port of New York, and removed by
the defendant into the Circuit Court of the United States for the
Southern District of New York, to recover back duties paid under
protest on certain importations of leaf tobacco into the port of
New York from Hamburg and Holland, in January and April, 1884. The
amount of duty exacted by the collector was $8,408. The plaintiffs
contended that the proper duty was only $5,113.85, and they sued to
recover back the difference, $3,294.15. They made due protest and
appeal.
Page 137 U. S. 226
It was claimed by the government and conceded by the plaintiffs
that the tobacco was dutiable under the following provisions of
Schedule F of section 2502 of title 33 of the Revised Statutes, as
enacted by section 6 of the Act of March 3, 1883, c. 121, 22 Stat.
503:
"Leaf tobacco, of which eighty-five percent is of the requisite
size, and of the necessary fineness of texture to be suitable for
wrappers, and of which more than one hundred leaves are required to
weigh a pound, if not stemmed, seventy-five cents per pound; if
stemmed, one dollar per pound. All other tobacco in leaf,
unmanufactured, and not stemmed, thirty-five cents per pound."
The question in issue was whether any of the tobacco was
dutiable at 75 cents a pound, and the court at the trial, before
Judge Shipman, directed a verdict for the defendant. Judgment was
entered accordingly, to review which the plaintiffs have brought a
writ of error.
The tobacco in question was imported into the United States in
bales. In each bale was a quantity of leaf tobacco answering the
description in the statute of that dutiable at 75 cents per pound,
except that it formed only about 83 percent of the contents of the
bale. It was Sumatra tobacco, imported from Sumatra into Europe in
the same bale in which it was imported into this country. When the
bale arrived in Europe, the entire contents of it were within the
description of that dutiable here at 75 cents a pound, but in
Europe the bale was repacked by taking out of it a quantity of its
contents and substituting therefor a sufficient quantity of
inferior tobacco, called "fillers," to reduce the proportion of the
75-cent tobacco in the entire bale to less than 85 percent of the
contents of the bale as imported into the United States. The
75-cent tobacco was separated from the other by strips of paper or
cloth, so that the one kind was readily distinguishable and
separable from the other when the bale was opened in the United
States.
Page 137 U. S. 231
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
Leaf tobacco consists of three classes, "wrappers," "fillers,"
and "binders." "Wrappers" are leaves suitable for the outside
finish of a cigar. "Fillers" are leaves that make up the main body
of the cigar, and "binders" are the secondary or inside wrapper,
and hold together the loose material which constitutes the filling.
Prior to the passage of the act of
Page 137 U. S. 232
1883, the various grades of leaf tobacco -- wrappers, fillers,
and binders -- were applied to different uses, were bought and sold
under their several names, and were of different value in the
market, and prior to that time bales of leaf tobacco in the trade
were, as a rule, homogeneous as to their contents, each one
consisting of only one of these three classes.
The plaintiffs claim that, upon the addition to the bale of
enough inferior tobacco to reduce the proportion, in the entire
bale, of the fine wrapper tobacco below 85 percent, the whole of
the tobacco in the bale was made dutiable at only 35 cents per
pound. They contend that the unit upon which the 85 percent is to
be calculated is the entire bale; but we cannot agree with this
view. The statute does not refer to tobacco in bales. It does not
say that the 85 percent is to be 85 percent of the contents of a
bale; but the duty of 75 cents per pound is imposed upon any
quantity of leaf tobacco of the specified quality and weight, if
not stemmed. In the present case, the carefully separated and
distinguishable quantity of tobacco in the bale which was of the
specified size, fineness, and weight, was the whole of it -- that
is, 100 percent -- and more than 85 percent of that size, fineness,
and weight, and all of it fell under the description of what was
dutiable at 75 cents a pound. The unit is not the bale, but is the
separated quantity of such leaf tobacco. That quantity stands, for
the purposes of duty, as if it had been imported in a bale which
contained nothing but itself. By the method of packing, the wrapper
tobacco and the filler tobacco remained entirely distinct. The
association of them in the bale was evidently only for the purpose
of avoiding the higher duty imposed upon the superior tobacco. This
association was to be dissolved the moment the bale was opened in
the United States, because the two grades of tobacco sold for
different prices in the market. It appears from the testimony of
one of the plaintiffs that, prior to the act of 1883, the bale of
Sumatra tobacco that was known and dealt in was a bale containing
about 160 or 170 pounds of that tobacco, and inferior tobacco was
not imported in the same bale with such Sumatra tobacco. The unit
of the statute therefore must be held to be leaf
Page 137 U. S. 233
tobacco wrappers answering the description which, when reaching
the named percentage, is subject to the duty of 75 cents a
pound.
It is argued for the plaintiffs that the bale must be considered
as the unit, because it is required by section 2901 of the Revised
Statutes that, for the purpose of appraisement, the collector shall
designate at least one package of every invoice, and at least one
package of every ten packages. Reference is made also to sections
2911 and 2912, which provide what shall be done in case the
appraisers find in a given package articles of wool or cotton of
similar kind, but different quality, and to section 2915, which
provides for the taking of samples from packages of sugar to
ascertain the quality, and to the Act of May 1, 1876, c. 89, 19
Stat. 49, providing for the separate entry of one or more packages
contained in an importation of packed packages, consigned to one
importer or consignee, and of which there is no invoice. But we do
not perceive that these statutory provisions affect the question in
hand. They refer only to what is to be done as to appraisement when
two articles of different quality are imported in the same package,
and to the separate entry of a package packed in a larger package;
but there is nothing in these provisions which shows that the 85
percent in question is to be regarded as meaning 85 percent of the
entire contents of a package containing separable and separated
quantities of leaf tobacco of two different qualities, and subject
to two different duties.
In the view which we thus take of this case, there is nothing
which conflicts with the decision in
Merritt v. Welsh,
104 U. S. 694. In
that case, under Schedule G of section 2504 of the Revised
Statutes, the sole test of the dutiable quality of sugars was held
to be their actual color, as graded by the Dutch standard, and it
was held that if the particular color was given to the sugar in and
by the process of manufacture, and was not artificially given to it
after it had been manufactured, it was subject only to the duty
imposed upon sugar of a specified color. The question there decided
was whether, in case the sugar was not artificially colored for the
purpose of avoiding
Page 137 U. S. 234
duties after it was manufactured, its dutiable quality was to be
decided by its actual color, graded by the Dutch standard, or by
its saccharine strength, as ascertained by chemical tests, and it
was held that the actual color was the test. So in the present
case, the actual qualities belonging to the given, separable
quantity of leaf tobacco which is made dutiable at 75 cents a pound
determine the rate of duty.
The present case was tried twice. At the first trial, before
Judge Wheeler, he directed a verdict for the plaintiffs, but he
subsequently granted a new trial. In his opinion granting it, 25 F.
897, he said:
"Justice to the plaintiffs, however, requires that they be
entirely acquitted of any attempt to deceive the customs officers
by what they did, for it was done with their full knowledge, and
partly at their suggestion, and after a like importation, with the
full knowledge of all, had been passed, as a test case at the lower
rate."
We concur in this view.
Judgment affirmed.