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of the witnesses says that he does not know of any straw laces in Italy which have no binder or fastening of any other substance about them. Whether elsewhere than in Italy straw lace composed wholly of straw may or may not exist does not appear. The other witness, when asked if he had ever known of an article designated as straw lace to consist of straws fastened together with other straw, answered, “No; not in Italian manufacture.” He added that if fastened together with straw they would not be called laces, but "would be a braid or plait.” It would seem strange that Congress should exclude braids or plaits from the operation of this section when thread was used to hold them together, but did not exclude the same when more loosely woven, although an equal amount of thread was so used.
Moreover, we are of the opinion that, in view of the course of legislation, a broad comprehensive meaning should be given to the phrase "composed wholly.” The section now under discussion is the well-known hat material clause, which appeared in the free list as paragraph 448, of March 3, 1883 (22 Stat. 511, c. 121). The braids, plaits, laces, etc., of that paragraph might be composed, not only of straw, chip, or grass, but of “any other substance or material,” provided only they were hat materials. By the amendatory act of February 18, 1890 (26 Stat. 8, c. 13), this paragraph was restricted by changing “any other substance or material” to “any vegetable material.” In the tariff act of 1890 (paragraph 518, 26 Stat. 604, c. 1244), it was still further restricted by striking out the words “any vegetable material,” leaving only the enumerated materials, “straw, chip, grass, palm leaf, willow, osier, or rattan.” Under this act it was held by this court that it was sufficient to make the paragraph applicable if the "predominant and characteristic component” was one of those specifically enumerated. Schiff v. U. S., 99 Fed. 555, 39 C: C. A. 652. In the tariff act of August 27, 1894 (paragraph 417, 28 Stat. 538, c. 349), it was further restricted by eliminating “willow” from the enumeration of materials. In the act of 1897, now before us, the hat material paragraph was transferred from the free list to the duty list; a lower rate of duty being accorded to such articles than that imposed on similar articles not suitable for hats. But the paragraph was again restricted by for the first time inserting the word “wholly,” thus bringing within the paragraph with its reduced duty only hat materials "composed wholly of” the enumerated materials. Under these circumstances, we think the words last quoted should be given their ordinary and natural meaning, and that hat materials composed at all of anything else should be left to pay their appropriate duty under other paragraphs. The decision of the Circuit Court is affirmed.
UNITED STATES v. 59,650 CIGARS et al.
(Circuit Court of Appeals, Second Circuit. March 23, 1906.)
INTERNAL REVENUE-FORFEITURE PROCEEDINGS- JUDGMENT AGAINST SURETY.
Where goods, seized by a collector for violation of the internal revenue law, under Rev. St. § 3453 [U. S. Comp. St. 1901, p. 2278], are attached while in his hands by the marshal on process issued in proceedings for their forfeiture, and a bond for their release is thereafter given by the claimant under section 3459 [U. S. Comp. St. 1901, p. 2281], the proviso to said section, requiring notice of the pendency of the proceedings in court to be given to the parties executing the bond, is inapplicable; such notice being intended to take the place of an actual seizure by the marshal where the goods have been returned to the claimant under the bond before such seizure has been made, and unnecessary where the attachment has been made, and the proceeding in rem is pending when the bond is given.
Appeal from the District Court of the United States for the Southern District of New York.
This is an appeal by Betty Gluck, one of the claimant's sureties on a bond for value, given pursuant to section 3459, Rev. St. [U. S. Comp. St. 1901, p. 2281], from a summary judgment entered against the surety after verdict rendered in favor of the United States forfeiting the goods. The opinion of the district judge is found in 138 Fed. 166.
Hugh G. Miller, for appellant.
Before WALLACE, LACOMBE, and TOWNSEND, Circuit
PER CURIAM. The only point raised is that notice of the pendency of the proceedings in court to forfeit the property seized should have been given to the surety by perso!ial service or publication. The only notice given was to the attorney for the claimant.
Appellant relies upon a provision in the section which reads as follows:
"In case said bond shall have been executed and the property returned hefore the seizure thereof by virtue of the process aforesaid, the marshal shall give notice of pendency of proceedings in court to the parties executing said bond by personal service or publication, and in such manner and form as the court may direct, and the court shall thereupon have jurisdiction of said matter and parties in the same manner as if such property had been seized by virtue of the process aforesaid."
The "process aforesaid” is the process of the court, the "monition” commanding the marshal to attach and detain the property.
The record shows that the provision above quoted is inapplicable. On September 25, 1903, the collector of internal revenue seized the goods under the authority conferred on him by section 3453 [U. S. Comp. St. 1901, p. 2278]. On September 28th the bond was executed, on September 29th the information was verified, and on September
30th monition issued to the marshal, who on the same day attached the property which he found in the hands of the collector. Subsequently, on September 30th, the claimant applied to the court, presenting the bond, and asking for delivery of the cigars, “as the same are attached by the marshal.” Thereupon the court ordered that they be delivered to the claimant. Had the collector returned them before seizure by the marshal, the provision above quoted would have applied; but since it is manifest that they were actually seized by virtue of the monition before they were returned, personal service of notice was unnecessary, the proceeding being in rem.
The judgment is affirmed.
OLIGSCHLAGER V. TERRITORY OF OKLAHOMA.
(Circuit Court of Appeals, Eighth Circuit. June 23, 1906.)
No. 2,244. DISORDERLY HOUSE-EVIDENCE OF LOCATION OF BUILDING WHERE CHARGED IN
INDICTMENT FOR UNLAWFUL USE ESSENTIAL WHEN NOT OTHERWISE IDENTIFIED.
In the trial of a charge of permitting the use for an unlawful purpose of a frame building owned and controlled by the defendant situated upon a certain lot in a town, but not described or identified in any other way, the absence of any evidence that the defendant owned or con
trolled any buildinig situated upon the lot specified is fatal to a conviction. (Syllabus by the Court.)
In Error to the Supreme Court of the Territory of Oklahoma. Samuel B. McPheeters and Warren D. Harris, for plaintiff in error.
Don C. Smith (W. O. Cromwell, on the brief), for defendant in error.
Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.
SANBORN, Circuit Judge. Two indictments were found against the defendant below, Peter Oligschlager, each of which charged in the same words that he knowingly allowed “a certain frame building located on lot fourteen (14) in block fourteen (14) of the original townsite of the city of Enid," which was owned and controlled by him to be used for a purpose denounced by the statute. The building was not described or identified in any other way. The two cases presented by these indictments were tried together before the same jury, and the defendant was found guilty, and sentenced under each charge. There was evidence about the ownership and use of some buildings on a lot fronting on West Railroad Avenue, south of the opera house, but no evidence that this was the lot 14 in block 14 described in the indictments, and none that there were any buildings either owned or controlled by the defendant or by another upon the latter lot. The testimony concerning the buildings on the lot south of the opera house was admitted after repeated objections of the defendant that it was incompetent, irrelevant, and immaterial,
and at the close of the trial he interposed a general demurrer to the evidence. The court disregarded this demurrer, and submitted the case to the jury. This was a fatal error.
This was a fatal error. The charge in the indictments was permitting the unlawful use of a building owned and controlled by the defendant on lot 14, and, in the absence of any evidence that there was any building on that lot, and that there was any building owned or controlled by the defendant thereon, the court could not lawfully permit the jury to find the defendant guilty as charged in the indictments. There were other alleged errors at the trial of the case, but, as that which has been considered necessitates a new trial, it is useless to discuss them. The judgments of the courts in the territory of Oklahoma (79 Pac. 913) are accordingly reversed, and the case is remanded to the District Court, with instructions to grant a new trial.
LOUIS METZGER & CO. v. UNITED STATES.
(Circuit Court of Appeals, Second Circuit. February 26, 1906.)
CUSTOMS DUTIES/CLASSIFICATIONSPANGLED HAT CROWNS.
The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673), for "articles composed *
* in part of
* gelatin," being more specific than that in paragraph 450, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678], for "manufactures of gelatin,” Hat crowns composed
chiefly of gelatin spangles are dutiable under the former provision. Appeal from the Circuit Court of the United States for the Southern District of New York.
For decision below, see 141 Fed. 381, affirming a decision of the Board of United States General Appraisers, G. A. 5,788, T. D. 25,578, which had affirmed the assessment of duty by the collector of customs at the port of New York.
The subject of the controversy consists of hat crowns composed chiefly of gelatin spangles. They were classified under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 (U. S. Comp. St. 1901, P. 1673], for "articles
in part of * spangles made of
* gelatin,” and were claimed by the importers to be dutiable under the provision in paragraph 450, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678], for manufactures of gelatin or of which gelatin is the component material of chief value.
Frederick W. Brooks, for the importers.
PER CURIAM. We are clearly of the opinion that the phrase “articles composed in part of *
spangles made of * gelatin,” is more specific than the phrase "manufactures of gelatin," and for that reason affirm the decision of the Circuit Court.
WINANS v. PERRING et al.
(Circuit Court of Appeals, Sixth Circuit. July 30, 1906.)
The King patents, No. 389,817, claim 1, and No. 507,439, claim 2, each for a combination of elements in the construction of a portable boat, held not infringed by a construction which did not contain all of the ele ments of the combination of either claim.
Appeal from the Circuit Court of the United States for the Western District of Michigan.
F. L. Chappell, for appellant.
Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District Judge.
SEVERENS, Circuit Judge. In his bill, the appellant complained of the infringement of two patents, Nos. 389,817 and 507,439, both of which were issued to C. W. King, the licensor of the appellant, for improvements in “portable boats”; the former on September 18, 1888, and the latter October 24, 1893. The patentee had previously taken out patents relating to such structures; one in 1882 for a "sectional boat frame," and the second in 1886 for a “portable boat.” Both of these, as well as other patents, were relied upon in the court below as anticipations of the patents in suit, and the patent of 1888 was claimed to be an anticipation of the patent of 1893, and prior public use was set up against the patent of 1888. Infringement was charged of one claim in each of the patents in suit. At the final hearing on pleadings and proofs, the bill was dismissed upon the ground that neither of the patents sued on were infringed.
Portable boats are made of canvas stretched on the outside of a frame, which holds it in form and is built in sections, in such 'manner that they can be detached from each other, folded together, and then rolled up in a package for convenient transportation. Fig. 1 of the patent of 1888, here shown, exhibits the general form and appearance of such boats. This boat is in three sections, meeting where the longitudinal ribs slightly cross each other.