« ΠροηγούμενηΣυνέχεια »
be used for the cap of a can having a hole of somewhat less diameter.
a They can be used for the tops or bottoms of round tin boxes for salves or medicines or candies. They are largely used by roofers in nailing on sheathing paper, the nail being driven through the disk and affording a more secure hold for the nail head. They are used as caps to the tops of cork stoppers for bottles, and many similar uses. If for these purposes it is essential to have tin disks, and for capping cans they are essential, disks would have to be obtained by cutting them out of sheet tin for the special purpose, if not otherwise obtainable. For this reason, and because they can be so used without undergoing any intermediate process of manufacture, but are fit to use just as they are, they have been held dutiable as an article manufactured from tin plate, under paragraph 140, and not as waste. T. D. 15,786, March 22, 1895; T. D. 24,759, G. A. 5,463, October 31, 1903; T. D. 2,571, G. A. 5,632, April 1, 1904. The collector at the port of Baltimore assessed the merchandise under Act July 24, 1897, c. 11, § 1, Schedule C, pars. 134, 140, 30 Stat. 160, 162 (U. S. Comp. St. 1901, Pp. 1638, 1639), at 112 cents per pound, holding the merchandise to be an article which was manufactured from the tin plate. The protest of the importer was overruled by the General Appraisers.
The facts and the law to be applied are very fully stated in the careful opinion rendered by General Appraiser Fischer in a prior case, which is as follows:
FISCHER, General Appraiser. The merchandise consists of tin disks about 134 inches in diameter, upon which duty was assessed at the rate of 112 cents per pound under the provisions of paragraphs 134 and 140 of the act of July 24, 1897, and which are claimed to be dutiable properly at 10 per cent. under paragraph 463, as waste, or at 10 or 20 per cent., under section 6, or at 45 per cent., under paragraph 193, either directly or by virtue of section 7, or free of duty under paragraph 683. We find from the record, including testimony given by the witnesses for the importer, and from the official samples, that the articles in question are of the precise character and description of those which were the subject of the board decisions in G. A. 5,463 (T. D. 24,759), and G. A. 5,632 (T. D. 25,171). The latter decision is as follows (T. D. 25,171; G. A. 5,632) :
“Fischer, General Appraiser. The merchandise is described in the collector's report as 'circular tin disks (new) varying in diameter from 142 to 3 inches.' Duty was assessed thereon at the rate of 142 cents per pound under the provisions of Act July 24, 1897, c. 11, § 1, Schedule E, pars. 134, 140, 30 Stat. 161, 162 [U. S. Comp. St 1901, pp. 1638, 1639]; and the importer claims, among other things, that they are properly dutiable as waste, at 10 per cent., under paragraph 463, or at 45 per cent., under paragraph 193. Inasmuch as the importer does not dispute in any way the accuracy of this description, but submits his case solely on the question of law involved, we find the facts to be as stated in the collector's report, and we find, further, that the goods are similar in all respects to those which were held in G. A, 5,463 (T. D. 24,759) to be dutiable at the rate herein assessed. The question of the proper rate of duty on this class of merchandise was decided in the decision just mentioned, after hearing much testimony and on a very complete record, and this protest would be overruled on the authority of said decision without further argument, but that the counsel for the importer in his brief has abandoned his claim under paragraph 463 and has urged with some ingenuity and much pertinacity the claim under paragraph 193—a contention not hitherto much pressed in the various cases of this character that have been passed on by the board. The only question to be decided, therefore, is whether the articles fall properly within the provisions of paragraphs 134 and 140, which read, respectively:
“ '134. Sheets or plates of iron or steel, or taggers fron or steel, coated with tin or lead or with a mixture of which these metals or either of them is a component part, by the dipping or any other process, and commercially known as tin plates, terne plates, and taggers' tin, one and one-half cents per pound.'
“ '140. No article not specially provided for in this Act, which is wholly or partly manufactured from tin plate, terne plate, or the sheet, plate, hoop, band, or scroll iron, or steel herein provided for, or of which such tin plate, terne plate, sheet, plate, hoop, band, or scroll iron or steel shall be the mate rial of chief value, shall pay a lower rate of duty than that imposed on the tin plate, terne plate, or sheet, plate, hoop, band, or scroll iron or steel from which it is made, or of which it shall be the component thereof of chief value.'
“Or under paragraph 193, which reads:
“ '193. Articles or wares not specially provided for in this Act, composed wholly or in part of iron, steel, lead, copper, nickel, pewter, zinc, gold, silver, platinum, aluminum or other metal and whether partly or wholly manufactured, 45 per centum ad valorem.'
"The first point counsel for the importer advances appears to be that the disks are made from tin cans, and that they are, therefore, articles made from articles that are made from tin plate, and that they are not articles made from tin plate. This argument is not founded on fact. In the process of manufacturing tin cans the piece that forms the body of the can is first bent and secured in cylindrical shape, then the bottom is put on, and finally the top, which is a circular piece of tin plate, with a circular piece cut out of the center; the diameter of the cut-out being in proportion to the size of the can. The purpose of cutting this piece out is to permit the filling of the can, which being accomplished, a larger piece than that cut out is soldered on to close the aperture. It is the tin disks thus obtained which, it will be noted, are cut from the tin plate before it becomes part of the can, that form the subject of the importation now in question.'
"Another argument of counsel for the importer is that, because the production of these disks was not the primary object of the manufacturing process to which they owe their existence, the main purpose being the fabrication of tin cans, they are, therefore, not dutiable as 'articles manufactured from tin plate.' This contention is untenable. It is probably safe to assume that the counsel for the importer will admit that the tin cans produced as described are articles made from tin plate. To assume the contrary would be absurd. And, this granted, how can it be said that the tin disks made from the same sheet of plate, and at the same time, are not equally 'articles made from tin plate'? That' two merchantable articles, each useful for different purposes, can be made at one operation, is a tribute to modern mechanical ingenuity and economical methods of production; but it is not a reason for classifying one of the articles at a lower rate of duty than the other, when the explicit provisions of the same tariff paragraph cover both. A reference to the decision of the Supreme Court in Junge v. Hedden, 146 U. S. 233, 13 Sup. Ct. 88, 36 L. Ed. 953, amply demonstrates that the word 'articles' is broad enough to cover these disks, irrespective of the manner in which they were manufactured. That a by-product, or incidental product, occurring in a manufacturing process, may nevertheless be 'a manufactured article,' was decided in the case of Standard Varnish Works v. United States, 59 Fed. 456, 8 C. C. A. 178, wherein the Circuit Court of Appeals for the Second Circuit, in passing upon candle tar, a residuum or by-product in the manufacture of candles, says: "The process of distillation to which the tallow, grease, or oil is subjected is apparently not undertaken with the intention thereby to obtain this new article. What is sought for is the glycerine and fatty acid to be made into candles.
As the goods are manufactured articles made from tin plate, they fall precisely within the provisions of paragraphs 134 and 140, and there is no need of recourse to the 'basket clause.' Paragraph 193. It is quite conceivable, and, indeed, it was intimated by a witness in one of the hearings held by the board on other protests on the same class of goods, that these disks are sometimes stamped directly out of tin plates or sheets, in which case it is certainly not open to argument that they are anything else but "articles manufactured from tin plate.' If, then, the contention of the
iniporters should prevail in this instance, we should have two different rates of duty for the same article; for it must be remembered the disks, in the condition as imported, differ in no respect whatever, being complete articles fully finished and ready for use just as they are for the various purposes cited in G. A. 5,463.
"The third point urged by the counsel for the importer is that, if the assessment as made is aftermed, the result will be that, owing to the low price
of these disks consequent on the circumstance of their production, the duty • levied thereon will be considerably higher ad valorem than the more valuable
articles made from tin plate pay. This result, however inequitable it may seem, is not an unusual concomitant of subjecting goods to duty at specific rates. It is not within our jurisdiction to assume to readjust the tariff schedules on equitable principles. That function belongs to the lawmaking power. It is urged that to affirm the assessment of duty as made would work an injustice and absurdity, and cases are cited to show that an interpretation of a statute that would so result should be avoided. What amounts to an 'injustice' or 'absurdity' is a matter of opinion. Where the statute is so explicit, and without ambiguity, either latent or patent, as the one under which these goods were assessed, there is no need of any strained construction, The statute interprets itself. In Thornley v. United States, 113 U. S. 310, 5 Sup. Ct. 491, 28 L. Ed. 999, the Supreme Court said: 'Where the meaning of a statute is plain, it is the duty of the courts to enforce it according to its obvious terms. In such a case there is no necessity for its construction.' And in Lewis v. United States, 92 U. S. 618, 23 L. Ed. 513: 'Where the language of a statute is transparent and the meaning clear, there is no room for the office of construction. There should be no construction where there is nothing to construe.' Note, also, Marine v. Packham, 52 Fed. 579, 3 O. C. A. 210, and Coles y. Collector, 100 Fed. 442, 40 C. C. A. 478.
“We are of the opinion that the contention of counsel for the importer is clearly not maintainable. The protest is accordingly overruled, and the decision of the collector affirmed."
The testimony taken in the case under consideration leads us to no different conclusion from that arrived at in the previous cases, and, following the decision quoted, we overrule the protest and aflirm the assessment of duty as made by the collector.
The decision of the Board of United States General Appraisers is affirmed.
In re HARRIS.
(District Court, N. D. Alabama, s. D. July 13, 1907.)
1. BANKRUPTCY – INVOLUNTARY PROCEEDINGS — AMENDMENT OF ANSWER BY
Formal amendments to an answer filed by a creditor to a petition in involuntary bankruptcy against his debtor may be made at any time be
fore adjudication. 2. SAME-AMENDMENT OF PETITION.
A petition in involuntary bankruptcy cannot be amended to allege additional acts of bankruptcy after the time for pleading thereto has passed and the alleged bankrupt by making default has confessed the acts charged.
[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, 88 126–
129.] 3. SAME-PROCEDURE WHEN TWO OR MORE PETITIONS ARE FILED.
Rule 7 of the general orders in bankruptcy, which provides that where two or more petitions in bankruptcy are filed against a debtor alleging separate acts of bankruptcy, and the debtor shall appear and answer such
petitions, the one which charges the earlier act of bankruptcy shall be first heard and determined, applied only where the defendant takes issue on both or all of the petitions. Where two petitions are filed alleging different acts of bankruptcy, and the defendant answers but one, which charges the earlier act, the rule has no application, and the case will proceed upon the petition which is confessed; the other remaining in abey
ance. 4. SAME-ANSWER-SUFFICIENCY.
Where a petition in bankruptcy charges as an act of bankruptcy a transfer of property by the defendant, while insolvent, to a creditor in payment of his debt with intent to prefer such creditor, an answer, which in effect admits the insolvency and the act charged, but merely denies the intent, raises no issue upon which the defendant is entitled to a jury trial.
In Bankruptcy. Involuntary proceeding.
Thompson & Thompson and Blackburn & Powell, for second petitioning creditors.
Z. P. Rudolph, for W. G. Harris, bankrupt.
HUNDLEY, District Judge. Stated in chronological order, in so far as is necessary for the purposes of this decree, the record in this case shows the following: On the 6th day of June, 1907, one of the creditors of W. G. Harris filed a petition in due form, praying for an adjudication in involuntary bankruptcy against said Harris. Upon the filing of this petition, a receiver of the estate of said alleged bankrupt was duly appointed. On the 8th day of June, 1907, other creditors of the alleged bankrupt filed a petition praying an adjudication in bankruptcy, and averring acts of bankruptcy prior to the acts of bankruptcy as averred in the petition filed on the 6th day of June, 1907. On the 24th day of June, 1907, Jacob Epstein, trading as the Baltimore Bargain House, an alleged creditor of said W. G. Harris, filed his answer denying that said Harris had committed any act of bankruptcy, as averred in the first petition. On the 29th day of June, 1907, W. G. Harris, the alleged bankrupt, filed an answer purporting to controvert the acts of bankruptcy averred in the second petition filed by one of the creditors. Concurrent with the filing of this answer, said Harris demanded a trial by jury. On the 2d day of July, 1907, the Southern Art Glass Company, one of the creditors of the alleged bankrupt, filed a contest of the acts of bankruptcy as averred and set forth in the second petition filed by creditors.
On the hearing of this cause, the creditors filing the second petition, moved to strike out the answer and demand for a jury, filed by the alleged bankrupt; and the creditors, who filed the first petition, moved to strike from the files the answer filed by Jacob Epstein, contesting the acts of bankruptcy averred in the first petition. On the hearing of this cause, the first petitioning creditors also asked to amend their original petition by averring acts of bankruptcy prior to those averred in the second petition.
Amidst all this maze of petition and counter petition, motion and counter motion, I shall endeavor as best I can to sift the wheat from the chaff, and come direct to the vital questions presented in this case.
However worthy and commendable it may be for attorneys to use skill and energy in protecting the interests of their clients, and thus indirectly, if not directly, protecting their own interests in the matter of fees in bankruptcy cases, yet it is the duty of the court, without regard to any of these considerations, to so construe the bankruptcy law and proceedings thereunder as to best conserve the purposes for which this law was enacted.
The motion of the creditors filing the first petition, to strike from the files the answer filed by Jacob Epstein, is sustained, because said answer filed by said Jacob Epstein is not sworn to as required by law. The motion of the said Epstein to amend his answer by filing the proper affidavit thereto is allowed, and said original answer as filed by him, with amendment as to affidavit, is therefore before the court for consideration in these proceedings as if the affidavit was originally attached thereto. Amendments of this character may be made at any time before adjudication. Section 59f, Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3145]); In re Stein, 105 Fed. 719, 45 C. Č. A. 29; In re Mackey (D. C.) 110 Fed. 356. The amendment filed by the first petitioning creditors, seeking to amend their first petition so as to aver acts of bankruptcy prior to the acts of bankruptcy averred in the second petition, is overruled. This amendment comes too late, and cannot properly and lawfully be allowed. The debtor having failed to answer or plead to the first petition, the averments therein are taken as confessed against him. To permit the amendment proposed would be, in effect, to permit the making of an entire new case, and that, too, after the time for pleading has expired.
I now come to the consideration of the really important and vital issue in this case; that is, whether that petition which was first filed shall be first heard, or whether the petition which was afterwards filed, on the 8th day of June, alleging acts of bankruptcy prior to those alleged in the first petition, shall first be heard and tried. It is contended by counsel for the second petition that this petition should be heard, first, because, under and by virtue of ruler of the general orders in bankruptcy, that petition which avers prior acts of bankruptcy must have priority of consideration. The proper decision of this question requires me to construe the purport, meaning, and intention of said rule 7 of the general orders in bankruptcy. It is true that, where two or more petitions are filed by creditors against a common debtor, alleging separate acts of bankruptcy, this rule does provide for the hearing and determination of that petition which avers the earlier act of bankruptcy; but this is not a general right conferred under that rule in all cases where two or more petitions are filed, but the right of priority can only be secured by the happening of certain contingencies set forth in the rule. The rule must be strictly construed. What the rule intends, and what right, if any, the rule actually confers, must be gathered from the four corners of the rule itself.
Now, in the first place, how is this rule called into action? How can the rights thereunder prescribed be obtained, and by whom? Can that rule be called into action by the alleged bankrupt alone, or by the creditors of the bankrupt.alone? I submit that a careful reading of the rule itself is only necessary for the determination of this question, and